text:
    HEBERLING v. CITY OF WARRENSBURG, Appellant.
    Division Two,
    June 11, 1907.
    1. NEGLIGENCE: Knowledge of Defect. It is error to instruct tbe jury -that if plaintiff knew of the defect in' the street and by the exercise of ordinary care could have avoided injury and did not exercise that care, he cannot recover. If he had knowledge of the defective condition, and also knew that it was dangerous, and failed to exercise ordinary care to avoid injury, he cannot recover. But mere knowledge of the defect alone is not sufficient; there must also be knowledge that the defective condition was dangerous.
    2. -: -: Duty to Discover. It is not the duty of a person traveling on a public street to examine the street for defects, but he may act upon the presumption that it is reasonably safe so long as he conducts himself as a reasonably prudent person would do under like circumstances.
    3. -: -: Avoiding Danger. If the traveler knows of the defect in the street, and it is not so obviously dangerous that no prudent person would attempt to use the street, he may still use it provided he exercises that care that a reasonably prudent person would exercise under like circumstances; but he is not bound, merely because he encounters a defect a reasonably prudent man would think he could pass by the exercise of care, to avoid the street entirely.
    4'. -: -: Culvert: Obvious Danger. The street commissioner had removed a culvert which extended entirely across the street, leaving a ditch, with hard perpendicular’sides, from a foot and a half to two feet wide and fourteen inches deep, and filled it with loose earth, which was soft, and wagons passing over it sank to the hub, and the day before plaintiff passed over it, it had rained and sleeted, and the place at the time was covered with water, and was not distinguishable from the surrounding street to one who did not know of the culvert’s removal. Plaintiff and his driver testifed that they did not know of the culvert’s removal or of the defective condition, and as they drove their buggy over it in a trot, the wheels. struck the hard perpendicular sides, plaintiff was thrown forward, the team ran, and the driver in order to stop them ran them into a telegraph pole, and plaintiff was injured. Held, that the mere fact that there was mud and water in the street cannot be held, as a matter of law, to have apprised them of the danger in crossing the place; nor, according to their evidence, was the place so glaringly and obviously dangerous that plaintiff must be held guilty of such contributory negligence as bars his recovery.
    5. -: Usual Care: Evidence. The mere fact the street commissioner filled the ditch in question in the same way he filled all other ditches from which he removed box culverts, does not prove that he was not guilty of negligence. A standard of care and safety cannot be established by such “facts.
    6. -: Construction: Continued Care. Where the petition counted, not only on the original negligent filling of the ditch from which the box culvert had been removed, but also on a continuing nuisance and a continuing duty of the city to keep its streets in safe repair, plaintiff cannot be confined alone to the negligent construction or the filling of the ditch with loose earth.
    Appeal from Johnson Circuit Court. — Eon. William L. Jarrott, Judge.
    Affirmed.

      James A. Kemper and Charles E. Morrow for appellant.
    (1) The demurrer to the evidence should have been given. The petition declares upon a defective construction; that is, that a certain box culvert in a dirt street was negligently and carelessly removed and the place filled in with dirt. Haines v. Pearson, 100' Mo. App. 551. Inasmuch as all the evidence shows that the place was filled in the usual and customary way and was safe for travel when finished, and that if it ever became unsafe and dangerous it became so afterwards by reason of the rains and the travel over it, plaintiff failed to make a case under his petition and the instructions in the nature of a demurrer to the evidence, asked by defendant at the close of plaintiff’s evidence and again at the close of all the evidence, should have been given. The judgment was for the right party, and must stand, regardless of any alleged error in the instructions. Haines v. Pearson, supra. (2) The court erred in granting a new trial on account of instruction seven given for defendant. This instruction was properly given in this case and has been approved. Womach v. St. Joseph, 168 Mo. 236; Wheat v. St. Louis, 179 Mo. 572; Kaiser v. St. Louis, 185 Mo. 374; Coffey v. Carthage, 186 Mo. 585; Jackson v. Kansas City, 106 Mo. App. 57.

      O. L. Routs for respondent.
    If for any reason assigned in the motion, the verdict should have been set aside, this court will affirm . the ruling of the trial court. Ittner v. Hughes, 133 Mo. 679; Hewett v. Steele, 118 Mo. 463; Bank v. Armstrong, 92 Mo. 265; State ex rel. v. Adams, 84 Mo. 310. The trial court committed error materially affecting the merits of plaintiff’s ease in giving instruction 7, at the request of defendant, and the new trial was,properly granted for that reason. (1)' The instruction told the jury that if plaintiff knew, or could have known of the “rut or depression” in the street and could have avoided it, he could not recover. That is, that mere knowledge of the existence of the “rut or depression” with no knowledge that it was dangerous, would preclude a recovery as a matter of law in the case. That, of course, 'is not the law. In addition to knowledge of the “rut or depression” plaintiff must have had knowledge that it was dangerous and necessarily dangerous before he would be precluded from recovering because he attempted to use the street and pass over the “rut or depression.” And whether plaintiff had such knowledge could not have been determined by the court as a mat-' ter of law. That was a question of fact which should have been submitted to the jury, had there been any evidence to base such submission upon. Beach on Contributory Negligence, sec. 273; Horton v. Tpwich, 12. Cush. 448; Holloway v. City, 7 N. Y. Supp. 363. Under the decisions of this court the instruction is clearly wrong. Graney v. St. Louis, 141 Mo. 180; Maus v. Springfield, 101 Mo. 613; Chilton v. St. Joseph, 143 Mo. 192; Gerdes v. Iron & Foundry Co., 124 Mo. 347; Flynn v. Neosho, 114 Mo. 567; Barr v. City of Kansas, 105 Mo. 560; Perrette v. City of Kansas, 162 Mo. 238; Beauvais v. St. Louis, 169 Mo. 500; Perrigo v. St. Louis, 185 Mo. 274. (2) The instruction is erroneous because of the words “or by the exercise of ordinary care could have known.” In other words, it required plaintiff to look for defects in the street. That was not the duty of plaintiff. It was the duty of defendant to look for defects and to keep the streets in a reasonably safe condition.. Plaintiff had a right to presume that defendant had done its duty and that the street was not in a dangerous condition'. Perrette v. Kansas City, 162 Mo. 238; Holloway v. Kansas City, 184 Mo. 29; Roe v. Kansas City, 100' Mo. 190; Drake v. Kansas City, 190 Mo. 385; Stout v. Columbia, 118 Mo. App. 439. (3) The instruction should not have been given because there was not a scintilla of evidence to base it upon, or tending to show that plaintiff knew of this “rut or depression” or of its dangerous condition, and he could not have known, because it was completely concealed and hidden. Kossman v. St. Louis, 153 Mo. 293; Perrette v. Kansas City, 162 Mo. 238; Holloway v. Kansas City, 184 Mo. 19.
   GANTT, J.

This is an appeal from an order of the circuit court of Johnson county, granting the plaintiff a new trial after a verdict for the defendant.

The action was one for damages caused by an alleged defective and dangerous condition of a street in the city of Warrensburg. The petition in substance alleged that the city of Warrensburg, on the 17th day .of December, 1902, and for a long time prior thereto, was and ever since has been a municipal corporation under the laws of this State, and that it had power and control over the public streets within its corporate limits and had authority to establish, open, alter and repair said streets so as to render them safe and secure for the public use and travel thereon, and it was its duty to so maintain and keep in repair the said streets so that at all times they should be safe and secure for public use. Plaintiff further stated that on said 17th of December, 1902, Main street, sometimes called South Main street, and West King street were two of the streets and public thoroughfares of the said city, Main street running north and south and King street running east and west, crossing each other at right angles; that long prior to said 17th of December, 1902, defendant had caused a culvert to be constructed and made on the north line of said King street extending across said Main' street in said city at the crossing of said streets; that said culvert or gutter was about two feet deep and about eighteen inches wide, constructed of boards or planks covered with earth or dirt; that on or about the 8th of December, 1902, the defendant negligently and carelessly removed said boards or planks and earth from said culvert and Med the same with soft or loose dirt or earth and by reason thereof rendered said streets and said culvert unsafe and dangerous to persons driving along and across said streets, and said street remained in such unsafe and dangerous condition on the 17th day of December, 1902, all of which defendant, its agents and servants, well knew and by the exercise of ordinary care might have known. Plaintiff says that on the 17th of December, 1902, while he was driving and being driven in a buggy drawn by a team of horses southward along said Main street towards King street at the intersection of said streets where said culvert had been by the carelessness and negligence of defendant rendered and permitted to remain in unsafe and dangerous condition as aforesaid, the front wheels of said buggy in which plaintiff was driving or being driven, dropped suddenly or sank into said culvert or excavation, whereby and by reason of which, plaintiff, without knowledge of the said dangerous condition of the said street and without any negligence upon his part, was thrown violently over the dash board of said buggy upon said horses and under their feet and upon the ground with great force and violence, by reason of which plaintiff was greatly and permanently injured in his arms, legs, chest, spine, abdomen and whole body, and rendered unable to work, and caused to lose much time, and suffer great mental and physical pain and anguish and-has been compelled to expend large sums of money for medicines and medical attendance, to his' total damage in the sum of fifteen thousand dollars, for which he prays judgment.

Defendant in its answer admitted its incorporation and that the streets mentioned were public streets and highways of said city as stated in the petition, but denied the other allegations, and pleaded contributory negligence. The reply was a general denial.

The evidence tended to show that a wooden culvert was located across Main street and extended across said street and had been so located for a number of years prior to the 17th of December, 1902. On or about December 8, 1902, the.street commissioner of the said city, with other employees of the city, removed this boxing or wooden culvert, leaving a ditch or excavation some 18 inches or two feet in width and about the same depth as the place where the culvert had been located. The sides of the ditch were left perpendicular or almost so and were compact and hard from long and continuous use of the street by the public. After removing the boxing, the street commissioner caused the same to be filled with loose dirt and left it. The wheels of vehicles passing along the street immediately afterwards sank into this loose dirt and jolted or bumped against the sides of the ditch. During the intervening week from the 8th to- the 17th of December, rain and sleet fell and the passing wheels of vehicles dropped to the bottom of the ditch, and in some instances, as the evidence tended to show, sank to the axles of the vehicles. The evidence for the plaintiff also tended to show that the dangerous condition was hidden from persons passing along the street by the loose dirt thrown into it and by water and mud covering the' ditch and the street. A number of plaintiff’s witnesses testified that on the day of plaintiff’s injury, they drove into this ditch unaware of its condition, but were not seriously injured. They testified that the ditch could not be seen on account of the loose dirt in it and the water oyer it, and they did not see it or know of it until the wheels of their conveyances- dropped into it. Other witnesses testified to- having seen the street commissioner and his employees removing the culvert and filling the ditch, and testified that it was left in an unsafe condition by the commissioner; one of them testifies that he spoke to one of the city employees engaged in the work and said to him, “If you don’t fix this place better someone will get hurt here. ’ ’ The evidence tended to show that the plaintiff was a stockman, and a butcher, and lived in Warrensburg, and had a slaughter house about a mile and a half southwest of the city; that on the day he was injured he got in the two-horse buggy with Prank Houts to ride with him to the plaintiff’s slaughter house, as-Houts went to his home. As the plaintiff and Houts approached this place they could see the water in the rut, but could not tell how deep it was. They were traveling in a trot and as they were attempting to cross this place the front wheels of the buggy dropped into the rut, the left wheel going down to the hub, and plaintiff was thrown onto and over the dash board onto the double-trees. This frightened the horses and they ran and plaintiff became entangled with the stay straps and double-tree, and Houts, who was driving, in order to stop the team, turned them into a telephone pole by the side of the road, and when they struck this the horses freed themselves from the buggy and the plaintiff was found to be injured.

■Defendant’s evidence tended to prove that its street commissioner had the box removed from across Main-street ; that it was sixteen inches wide and fourteen inches deep, and that they took it out by digging by the side and lifting the box out and then put the dirt back in the hole, and also put in other loose dirt in the place from which the box had been removed, and this dirt was tramped in with the foot and when the trench was filled it was rounded up on top some twelve inches high above the level of the surface. Witness for the defendant also testified that this was the way they always fixed them up, the way they always left them; that this was the usual and customary way of fixing places of that kind. Defendant also introduced evidence tending to show that the condition of the rut was not as dangerous as stated by plaintiff’s witnesses and that other people in their usual.ways of travel had crossed it .with loaded wagons and other vehicles. The street commissioner testified that after filling the ditch he left it and neither saw nor heard any more of it until he heard of plaintiff’s injury. Mr. Brewer, one of the city councilmen and a member of thg street and alley committee, testified that he had passed over this ditch daily from the time the culvert was removed until the plaintiff was injured; that he had hauled a load of wood over that place on the day before plaintiff was hurt, and he had no moré difficulty there than he did at other places in the road, that the roads were all bad. It had been raining and had sleeted the day before.

At tire time of the occurrence the plaintiff was being driven in Hout’s buggy in a trot at the rate of about four or five miles an hour. Neither Houts nor plaintiff knew that the culvert had been removed or of the existence of the ditch or that it was in a dangerous condition. The court over the objections and exceptions .of the plaintiff gave the following instructions for the defendant:

No. 4. “The court instructs the jury that if you find and believe from the evidence that the defendant city was not negligent in removing the culvert or gutter from across Main street and filling the place from which it was taken with dirt or earth, and that after the same was removed and the place so filled with earth, or dirt, said street at said place was in a reasonably safe condition for the us.e of the public, then you must find for the defendant; although you may believe that the same afterwards became in an unsafe and dangerous condition from the rains and travel thereon or from any other cause.”

No. 5. “The court instructs the jury that the defendant city had a perfect right to remove the culvert or gutter from across Main street, and unless you find and believe from the evidence that the defendant failed to exercise ordinary care in filling the place from which the same was removed, so that the same was unsafe and dangerous and not reasonably safe for travel thereon in the ordinary modes of travel by persons exercising ordinary care and caution for their own safety, then you must find for the defendant.”

No. 6. “The court instructs the jury that it is not for every defect or imperfection in a street, even though it may .cause an injury, that the defendant city is liable, but that the defect or imperfection must be such that on its account the street is not reasonably safe for the people traveling thereon when exercising ordinary care for their own safety and traveling in the usual modes.”

No. 7. “The court instructs the jury that if you find and believe from the evidence that the plaintiff knew, or by the exercise of ordinary care could have known of the rut or depression in the street at the place where plaintiff claims to have been injured, and by the exercise of ordinary care could have avoided it, then your verdict will be for the defendant.”

No. 8. “The court instructs the jury that the burden of proof in this case devolves upon the plaintiff to prove to your satisfaction by the greater weight of credible testimony in the case, that the defendant city was negligent in removing the culvert or gutter from across Main street and filling the place from which the same was taken with earth or dirt, at the place where the plaintiff claims to have been injured; and by the burden of proof is meant the greater weight of the credible testimony in the case.”

No. 9. “The court instructs the jury that the defendant city is not liable as an insurer of the safety of those who travel along its streets. Even if you find that the plaintiff was injured upon the street of the defendant city, that fact is not sufficient in itself to enable plaintiff to recover unless you find that the city negligently and carelessly removed the gutter or culvert on Main street and filled the same with earth or dirt, rendering the same not in a reasonably safe condition for travel upon it at the place where the plaintiff alleged he was injured, and that plaintiff was injured by such negligence, without any fault or negligence on the part of the plaintiff directly contributing thereto.”

I. The only proposition for consideration on this appeal is whether the circuit court erred in granting plaintiff a new trial. The circuit court assigned as its reason for granting a new trial that it had erred in giving defendant’s seventh instruction, which is in these words: “ The court instructs the jury that if you find and believe from the evidence that the plaintiff knew or by the exercise of ordinary care could have known of the rut or depression in the street, at the place where plaintiff claims to have been injured and by the exercise of ordinary care could have avoided it, then your verdict will be for the defendant. ” The circuit court was of opinion that it erred in instructing the jury that if plaintiff knew, or could by the exercise of ordinary care have known of the rut or depression in the street he could not recover, instead of directing them that if plaintiff knew of the defect and that it was dangerous and by the exercise of ordinary care could have avoided being hurt, he could not recover. Our learned brother of the circuit court correctly construed this instruction, as telling the jury in plain words that knowledge alone of the defect in the street precluded a recovery by plaintiff, and that it was an incorrect statement of the law, and he committed no error in granting a new trial on that ground. Defendant urges that the instruction was in substance the same as the one approved in Womach v. St. Joseph, 168 Mo. 236, but in that case the instruction was that “if the condition of the sidewalk was dcmgerous and the plaintiff knew it, unless plaintiff exercised ordinary care to avoid being hurt, she could not recover. ’ ’ The authorities cited by learned counsel for defendant do not sustain their contention. It is one thing to advise a jury that if a traveler knows of a defect in a street, with no knowledge that it is dangerous, and fails to use the care which a reasonably prudent person would exercise under like conditions and is injured he cannot recover, and a very different thing to instruct a jury that if a traveler knows of the dangerous condition of a highway and by the exercise of ordinary care could avoid it, but does not, he cannot recover. When a person voluntarily attempts to. pass over a sidewalk or other highway which he knows to be dangerous by reason of some obstruction or defect therein, when he might avoid it by tbe exercise of ordinary care, he is guilty of contributory negligence.

In Cohn v. Kansas City, 108 Mo. 392, tbe action was against tbe city for damages resulting from personal injuries sustained by reason of a defective sidewalk and the court at tbe request of plaintiff instructed tbe jury that tbe fact that plaintiff knew tbe condition of tbe street would not prevent a recovery “if she used sucb care in attempting to pass along said street as persons ordinarily use under sucb circumstances,” and in another instruction tbe court told tbe jury that ‘ ‘ ordinary care is just sucb care as a person should ordinarily exercise under sucb circumstances. ’ ’ This court said: “ Tbe court erred in both of these definitions; for ordinary care is that care which a prudent person ordinarily uses under like circumstances, which is another and different thing from such care as persons ordinarily use under like circumstances.”

In this case tbe circuit court properly directed tbe jury that ‘ ‘ ordinary care as used in these instructions means sucb care and prudence as an ordinarily prudent person would exercise under tbe circumstances detailed in evidence, and negligence means tbe failure to exercise ordinary care. ’ ’ In its first instruction for tbe plaintiff, tbe court directed tbe jury “that it was tbe duty of tbe city to exercise reasonable care to keep tbe streets in a reasonably safe condition for tbe passage along sucb streets of persons in tbe exercise of ordinary care, in vehicles. ”

In Perrette v. Kansas City, 162 Mo. 238, tbe court bad occasion to consider this question. Tbe circuit court in that case instructed tbe jury that it was tbe duty of tbe city to keep tbe sidewalk in a condition reasonably safe for the use of tbe public and tbe plaintiff bad tbe right to presume that this duty bad been performed.

In tbe discussion of that instruction it was said: “The first instruction is criticised upon the ground that it told the jury that the sidewalk, where the alleged accident occurred, was in a condition reasonably safe for the use of the public in the face of the fact that the plaintiff himself swore positively that he passed over the walk twice a day, morning- and evening, at the place in question, and that it was ‘in pretty bad shape all the time. ’ If plaintiff knew of the unsafe condition of the sidewalk at the point where the accident occurred, he had no right to- presume that it was in a condition reasonably safe for the use of the public. [Brannock v. Elmore, 114 Mo; 55; Nixon v. Railroad, 141 Mo. 425.] This would be the indulgence of a presumption over an absolute fact and illogical;” and it was pointed out that he also testified that he did not know it was so bad as it was at the point where he was-hurt and had never seen the hole before. Accordingly it was held the instruction was correct. In that case it was urged by the city that if the plaintiff failed to use ordinary .care to discover the dangerous condition of the sidewalk he was not entitled to recover, but this court said: “The law, however, did not impose upon plaintiff the duty of looking for defects in the sidewalk, which, in the absence of knowledge of its dangerous condition, he had the right to assume was reasonably safe for travel. ”

In a leading case on this subject it was said: “The fact that plaintiff had notice of the existence of the excavation did not preclude her from a recovery if she fell into the ditch without any fault or negligence on her part.” [Russell v. Columbia, 74 Mo. 494; Barr v. Kansas City, 105 Mo. 560; Graney v. St. Louis, 141 Mo. 180; Maus v. Springfield, 101 Mo. 613; Chilton v. St. Joseph, 143 Mo. 192.]

In Coffey v. Carthage, 186 Mo. 585, Fox, J., speaking for this court, said: “If plaintiff had no knowledge of the defect or hole in the sidewalk, then she had the right to assume that the sidewalk was in a reasonably safe condition. But while she was entitled to act upon this assumption, still she must exercise that degree of care and caution in walking on said sidewalk which a prudent person ordinarily employs under similar cicumstances. ” This is, we think, a correct statement of the law. Other expressions in that case in regard to her duty to discover the defect in the sidewalk must be read in connection with the facts in the case and mean no more than that every traveler is bound to use ordinary care for his own safety and that if Mrs. Coffey in that case was proceeding carelessly and without paying any attention to where she was walking then she could not recover, but it is not to be understood that it is the duty of the citizen to inspect the sidewalks or streets for defects of which he has no knowledge, but he may act on the presumption the street is reasonably safe so long as he conducts himself as a reasonably prudent person would under like circumstances. If he knows of a defect and it is not so obviously dangerous that no prudent person would attempt to use the street, he may still use the street provided he exercises that care which a reasonably prudent person would in like circumstances, but he is not bound, merely because he encounters a defect which a reasonably prudent man would think he could pass by the exercise of care, to avoid the street entirely. In this case the evidence seems to be uncontradicted that neither plaintiff nor Houts knew of the removal of the plank culvert and the mere fact that there was mud and water in the street cannot be held as a matter of law to have apprised them of the danger in crossing the rut, but certainly according to their evidence it was not so glaringly and obviously dangerous that they must be held guilty of such contributory negligence as will bar a recovery. According to their testimony they were justified in thinking that they could drive along the street safely by using that care and caution which ordinarily prudent men would exercise under the circumstances. Whether they were so doing was a question for the jury under proper instructions.

II. As to the contention that the city street commissioner was guilty of no negligence because this was the way he filled all such holes, we cannot give our approval. The jury were at liberty to find that he had been negligent in filling all of them. He could not establish a standard of care and safety by his own conduct in that regard.

Much has been said in the brief for defendant in regard to confining plaintiff to the negligent construction alone. We think the court properly submitted the issues as to that, but the petition counted, not only on the original negligent construction or act in leaving such a hole filled only with loose dirt, but the continuing nuisance and the continuing duty of defendant to repair the highway. This defect was not the act of a third party of which the city had no notice but was the city’s own act of which it was bound to take notice.

Our conclusion is that the seventh instruction was reversible error and should not have been given. Otherwise the case seems to have been well tried. The judgment of the circuit court granting a new trial was right and is affirmed.

Fox, P. J., and Burgess, J., concur.


source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    GEORGE W. STOTLER et al. v. CHICAGO & ALTON RAILWAY COMPANY et al., Appellants.
    Division Two,
    June 11, 1907.
    1. NEGLIGENCE: Neither Looking Nor Listening. Notwithstanding the train was running at a very rapid rate (forty to- fifty miles per hour) within the corporate limits of the city, in violation of an ordinance, and without ringing the hell or sounding the whistle, yet if a woman, driving an open huggy, in broad daylight, with an unobstructed view of forty or fifty feet between the houses and track as she approached the crossing, and with an unobstructed view down a straight track for more than a mile, drove her horse in a trot upon the track, without any effort to stop or to increase or decrease her speed, and without looking up the track in either direction or in anywise turning her head or listening, and was struck by the train ■ just as the buggy got on the track, she was guilty of such ‘ contributory negligence as bars a recovery by plaintiffs for her death.
    2. -: -: Contributory Negligence. Where the train could have been seen while deceased was yet in a place of safety, and one of two conclusions is inevitable, either that she did not look and heedlessly drove upon the track and was killed, or that she did look and saw the approaching train and attempted to cross ahead of it, she was guilty of such contributory negligence as bars a recovery by her children.
    3. -:. -: -: Presumption Ordinance Was Being Obeyed. If a traveler sees or has reason to believe that the train is being run in excess of the ordinance rate, he has no right to risk his life on the presumption that the ordinance is being observed. And where the traveler had an unobstructed view for forty or fifty feet before reaching the crossing, > and the time was daylight and the buggy top was down, and the train could have been seen had she looked, and all the evidence on the issue as to whether or not she did look, though of a negative character, is that she did not look or attempt to look, there is no ground in the case on which to construct a rational presumption that she trusted the engineer was obeying the ordinance and so trusting concluded she could cross in safety.
    4. --: Imputed Negligence. A distinction is made between the mother’s own positive contributory negligence which bars the. right of her children to recover for her death, and the imputed negligence of the minor daughter who was in the buggy with her mother at the time her mother negligently drove upon the track, in this case and the case of Eugenia Stotler v. Railroad, 200 Mo. 107, the court holding in the daughter’s case that the contributory negligence of the mother could not be imputed to the daughter, who was not shown to have any control over the horse, and in this case, where the mother was the driver, that the plaintiffs' cannot recover because of the mother’s own contributory negligence.
    Appeal from Audrain Circuit Court . — Hon. A. H. Wall&r, Judge.
    Reversed.

      Scarritt, Scarritt & Jones for appellants.
    P. H, Cullen, W. H. Logan and Walter Bur oh for respondents. •
   FOX, P. J.

From, a judgment rendered in the circuit court of Callaway county, Missouri, in favor of plaintiffs, defendants appeal. This suit was originally instituted in the circuit court of Audrain county on July 18, 1903. The cause was removed upon the application of the defendants Wiseman and Haines to Callaway county, where it was finally tried at the August term, 1904, of said court.

This is a suit by the minor children of Phoebe Stotler to recover statutory penalty of five thousand dollars for the wrongful lulling of their mother. The plaintiffs’ petition states, in substance, that they are minors under the age of eighteen and twenty-one years; that their father and mother are dead, and that they bring this suit by John W. Stotler, their duly appointed guardian and curator; that the defendant railway company is incorporated under the laws of the State of Ulinois, and operates a railroad running from Louisiana, Missouri, through the city of Laddonia, in Audrain county, to Kansas City; that defendants Wise-man and Haines are residents of Missouri and employees of their codefendant, acting respectively as engineer and conductor of the train doing the injury. That on the — day of April, 1903, the deceased was driving a vehicle in Laddonia, Missouri, and that while driving north on a public road or street in said city, commonly called Pine street, which said street crosses defendant railway company’s track in said city, and while said vehicle and the deceased were in the act of crossing the track they were struck by an engine and caboose owned by and under the control of defendants, running east on defendant’s track, and the said Phoebe Stotler was killed. Plaintiffs then pleaded a violation of an ordinance of the city of Laddonia, which provides that it shall be unlawful for any railroad company or its agents, servants or employees to run upon its tracks or switches within that part of the corporate limits of said city where said railroad track, tracks or switches are unfenced, any locomotive, car or train of cars, at a rate of speed to exceed eight miles per hour. The petition further states that at and near said crossing the tracks of defendant are unfenced and that said crossing is in the corporate limits of said city; that it was the duty of defendants to have its locomotives and cars under full control and to keep a lookout for travelers when approaching said crossing; that defendant did not within eighty rods, or within any other distance of said crossing, ring the bell or blow the whistle on said train of cars and keep the same ringing and blowing until said engine had passed said crossing, but negligently and carelessly and unlawfully failed and refused to give any signals at all of the approach of said train at said crossing, and that the defendant saw and knew, or by the exercise of due diligence might have seen and known, that the deceased was in a perilous position and unaware thereof, and unable to escape from tbe impending danger, and that they negligently failed to sound the usual and ordinary signals of danger in time to avert the 'injury, and negligently and carelessly failed to stop or slacken the speed of said train, when as a matter of fact by the exercise' of due care they might have stopped or slackened the speed thereof in time to avert said injury; that the deceased at the time of her death was a widow and left no husband surviving her, and that the plaintiffs herein 'are her minor children and that thejr were dependent upon her for support.

In due time the railway company filed its petition and bond in the circuit court of Audrain county for the removal of the cause to the United States Circuit Court for the Eastern District of Missouri, on the ground of diverse citizenship between the defendant and plaintiffs and their guardian and curator. The petition further alleged that defendants Wiseman and Haines were residents of Missouri, and that they are fraudulently and improperly joined as parties defendant for the sole purpose of defeating the right of defendant company to such removal, and that plaintiffs’ petition stated no cause of action against Wiseman and Haines; that the negligence alleged against Wise-man and Haines is nonfeasance only, and for which said defendants are liable only to the defendant company. The petition denies that plaintiffs have any cause of action against it or its codefendants, and avers that the defendants have a good and sufficient defense thereto, and even if the facts alleged in the petition are true, the liability, if any, exists against the defendant company only; that in pleading an ordinance of the city of Laddonia, plaintiffs do not allege that said ordi-' nance had been accepted by the petitioner or its co-defendants, and that said ordinance is merely penal and not binding on the defendants. The petition for removal of the cause was denied.

The defendants Wiseman and Haines filed a demurrer, alleging that the petition of plaintiffs does not state a cause of action against either of these defendants, that they are not necessary parties to a complete determination of the action and that there is a misjoinder of parties defendant. This demurrer was hy the court overruled.

Thereafter, during the same term, defendants Wiseman and. Haines filed their application for a change of venue, and the venue of said cause was by order of court changed to the circuit court of Callaway county, Missouri. In the circuit court of Callaway county defendant company filed what is termed by them a plea in abatement, in which the jurisdiction of the State court is challenged, and setting forth the var7 ious unsuccessful steps taken for the removal of the cause, together with the adverse rulings of the circuit court of Audrain county thereon, which plea in abatement was by the court overruled, to which the defendant company duly excepted.

The answer of the defendant company was a general denial and a further plea that the death of plaintiffs ’ mother was caused by her own contributory negligence and that of plaintiff Eugenia Stotler; the answer pleaded the unreasonableness and invalidity of the speed ordinance of the town of Laddonia and want of jurisdiction of the court grounded upon the application for the removal of the cause to the Federal court. The answer of defendants Wiseman and Haines consisted of a general de'nial and plea of contributory negligence.

The reply was a general denial.

The testimony developed at the trial of this cause was substantially the same as in the case of Eugenis.-Stotler against these same defendants, 200 Mo. 107, and tended to show about this state of facts: Laddonia is a small town of about seven hundred inhabitants in Andrain county, about four miles east of Rush Hill. Most of its inhabitants live south of defendant railway company’s right of way, which extends substantially in an easterly and westerly direction through the northern part of the land included in the city limits. On or about the 22d day of April, 1903, between six and seven o’clock, the deceased and her daughter were riding in a one-horse buggy, with the top down, going north on Pine street. At this crossing Pine street runs directly north and south. When at this crossing the hind wheels of their buggy were struck by a train, consisting of engine and caboose, running east on said track. In the collision the mother of the plaintiffs was killed. The crossing was the most frequented crossing in Laddonia. On the part of the plaintiffs the testimony tended to show'that a number of dwelling houses are located on the west side of Pine street, and on the south side of the railroad, and that a few feet south, of the right of way of the defendant company are two frame buildings, one of which is a story-and-a-half and the other a one-story building.

R. S. McKinney testified for the plaintiffs that he was surveyor- of Audrain county. This witness made a plat of the crossing and measurements. He testified that a person would have to be within.fifty feet of the tracks to get a view to the west.

C. A. Smith and J. A. Pierce also testified for plaintiffs. They state that they secured a horse and buggy and made some observation at the place where the accident occurred, as to distance, time and so forth. These witnesses testify that before one riding in an ordinary one-horse buggy could see to the west, the horse’s head would be within thirty feet of the south rail of the main track. It was further shown that an ordinary buggy measures about nine feet from the seat to the end of the shaft, and that a horse’s head is usually about two or two and a half feet above the shaft.

T. Kidd testified for plaintiffs substantially as follows: That at the time of the accident he was traveling south on Pine street, about two blocks from the crossing; that his attention was attracted by the whistle of the train and that he saw the train about the time it struck the vehicle; that he did not hear a whistle sounded or bell rung prior to the time the train reached the cattle-guard and before the accident. In describing the manner in which the deceased approached the track this witness said: “She just came up in a slow trot; she drove up on the track; and it looked to me like the horse just slacked up a little when the train struck the huggy. Q. Where was the horse at the time you say it slacked up a little? A. The horse was right on the track. Q. Up to that time state whether or not she had stopped, so far as you know? Á. I didn’t see her stop. Q. What part of the outfit was struck? A. It looked to me like it struck about the center of the buggy. Q. She went on in a slow jog up to that time, when the horse checked up a little when it got on the main track, and then went over? A. Yes, sir. Q. Did you see her turn her head and look in any direction as she approached the track? A. No, sir; I didn’t notice her turn her head at all.” This witness testified that the train was running at least thirty or forty miles an hour at the time of the accident. One of the witnesses for the plaintiffs estimated the speed of the train at the time of the accident at from sixty to eighty miles per hour, while the other witnesses estimated it at from forty to sixty miles an hour. After the accident the engine ran down past the second elevator east of the depot. Prom the crossing to the elevator mentioned the distance*was shown to be 842% feet, and the depot was located 221 feet and eight inches east of the crossing.

¥m. 0. Montague testified for plaintiffs substantially as follows: That he was nineteen years old and that his occupation was a farmér and that he lived in Audrain county, near Laddonia, and had lived there all his life; that at the time of this accident he was at the house of a neighbor, southwest of the crossing, a distance of between half a quarter and a quarter of a mile, and that when he first noticed the train it was a little east of Rush Hill, which is four miles from the station of Laddonia; that when his attention was called to the train he noticed it continuously until it passed out of his view behind a barn; that the distance from the barn to the center of the street or crossing where the accident occurred is about one hundred or one hundred and fifty yards, but that he had not measured it; that he did not hear a hell rung or whistle sounded by the engine until just as it was going behind the barn; that he did not see the accident and could not see the crossing from where he was located. This witness stated that the track or country between Rush Hill and' Laddonia is an open prairie country.

Plaintiffs also offered evidence tending to show that on the trial of the case of Eugenia Stotler against these defendants, defendants Wiseman and Haines testified that the speed of the train at the time it struck the buggy in which the deceased and Eugenia Stotler were riding was from twenty-two to twenty-five miles an hour.

On behalf of the defendants, L, S. Simpson testified that he was the night telegraph operator at Laddonia at the time of the accident; that there was a semaphore signal at the depot at Laddonia and that when the engine which struck and killed Mrs. Stotler was approaching the corporate limits of the city of Laddonia from the west this signal indicated an order to stop; that he was in the depot when he saw the train approaching and when they reached the general whistling point the engine gave a signal for the .station, which is one long whistle; that he had no orders for them and gave them the order to proceed which was done hy holding down the arm of the semaphore signal, and that the engineer answered it hy two short whistles. This witness stated that the engine was at the nsnal whistling post, which is about a quarter of a mile west of the crossing, when the signals were given. He further states that when the engine passed the depot the brakes were applied and that they seemed to be trying to stop it.

Defendants also offered evidence by two civil engineers, tending to show from surveys made by them that there was nothing to obstruct the view of a person walking or driving in a vehicle, such as Mrs. Stotler occupied, from a point sixty-three feet south of the south rail of this track, up to the track, of a locomotive approaching from the west for a distance of two miles; that a person riding as the deceased was could see the rails of the railroad track from the time she was within sixty-three feet of the south rail of the main track until she reached it, for a distance to the west of at least two thousand feet; that the right of way of the railroad, which is one hundred feet wide west of the public road where the accident occurred, is fenced on either side for several miles west of Laddonia up to within about one hundred and twenty feet of the road where the accident occurred, at which place there is a cross-fence with a cattle-guard at the track, and that the track west of the crossing is exactly straight for a mile or more; that the right of way at that place runs from the west a little north of east and the public road runs about north and south; the public road crosses the railroad track at grade, and that there is a very slight slope of about a foot upward as you approach the track from either side for a distance of about-fifty feet.

This is a sufficient reference to the facts developed at the trial to enable us to determine the legal propositions disclosed by the record. At the close of the evidence defendants requested an instruction in the nature of a demurrer, directing the jury, under the pleadings and evidence, to find the issues for defendants. This request was denied. The court then submitted the cause to the jury upon instructions covering the entire case. The jury returned a verdict finding the issues for the plaintiffs, and assessing the statutory penalty in the sum of five thousand dollars. Timely motions for new trial and in arrest of judgment were filed and by,the court overuled. Judgment was rendered in accordance with the verdict for the amount of the penalty assessed by the jury and from this judgment defendants in proper form and due time prosecuted their appeal to this court and the record is now before us for consideration.

OPINION.

The record before us in this cause discloses the assignment of numerous errors, but it is manifest that there is but one vital proposition confronting us for consideration, that is, under all the evidence disclosed by the record are the plaintiffs entitled to recover, and did the trial court commit error in denying the instruction at the close of the evidence in the nature of a demurrer directing the jury to find the issues for the defendants'? The controlling facts in this cause as is indicated in the statement of the cause - are substantially the same as the facts developed in the case of Eugenia Stotler against these same defendants, 200 Mo. 107. The testimony in this case tends to show and it must be taken as establishing beyond dispute the fact that the defendants at the time and place of the accident were operating this engine.and car at a rate of speed in violation of the ordinances of the town of Laddonia. As to the rate of speed there is a conflict of testimony, some of the witnesses fixing it between thirty and fifty miles an honr, others between twenty-two and twenty-five, and one witness between sixty and eighty miles an honr; however, we are inclined to the opinion that the weight of testimony shows that the engine was running between forty and fifty miles an hour.

The testimony on the’ part of the plaintiffs shows that the deceased, in the language of the witness who saw her approaching the track, drove up on the track in a slow trot and that she did not slack up until the train struck the buggy; she did not stop,- and the only eye-witness says that she went on in a slow jog up to the time when the horse checked up' a little when it got on the main track. This witness further says, and he was watching the accident, that he did not notice her turn her head at all, and in his opinion the train was running at least thirty or forty miles an hour at the time of the accident. The testimony is also undisputed as to the fact that the deceased and her daughter were. riding in a one-horse top buggy, that the top was down, the mother doing’ the driving’. There is some conflict in the testimony as to the distance from the crossing of the main track where the accident occurred, which bears on the point that the deceased and her daughter could have an unobstructed view to the west and see an engine approaching; however, the testimony on the part of the plaintiffs shows that when they were within forty or fifty feet of the track they would have a view of the track and if they were looking could easily see an engine approaching the crossing. There was other testimony tending to show that they had an unobstructed view of the approach of the engine to this crossing, that is to say, between sixty and sixty-five feet. That the deceased, had she been looking, could have seen this engine approaching the crossing where she was killed, when she was forty or fifty feet from the track, the testimony leaves no ground for dispute. Witness T. Kidd, who testified in behalf of the plaintiffs, was the only person who saw the accident and he thus describes it: “She just came up in a slow trot, she drove up on the track, and it looked to me like the horse just slacked up a little when the train struck the buggy. Q. Where was the buggy at the time you say it slacked up a little? A. The horse was right on the track. Q. Up to that time state whether or not she had stopped, so far as you know? A. I didn’t see her stop. Q. What part of the outfit was struck? A. It looked to me like it struck about the center of the buggy. Q. She went on in a slow jog up to that time, when the horse checked up a little when it got on the main track, and then went over? A. Yes, sir. Q. Did you see her turn her head and look in any direction as she approached the track? A. No, sir; I didn’t notice her turn her head at all.”

We have in this case, when the facts as disclosed by the record are analyzed, an engine running at a very rapid rate of speed approaching the crossing, and Mrs. Stotler, the deceased, driving ín a buggy with the top down, in broad daylight, with a plain, unobstructed view of the approach of the engine at least forty or fifty feet before she reached the crossing, driving the horse in a trot, making no stop, and so far as the witness who was looking at the occurrence saw, did not turn her head at all,, drove up on the track and was then struck and killed by the engine being operated by the defendant’s servants and employees; therefore, the simple question confronts us, are the plaintiffs entitled to recover under that state of facts?

In the case of Eugenia Stotler against these same defendants, for the recovery of damages for injuries received in the same accident now under consideration, this court, In Banc, affirmed the judgment, and while the esteemed and learned judge in expressing the views of this court as applicable to that case, disclaims any intention to decide any cause which might arise from the death of the mother in the same accident, and while it is true, as stated, that the cause of action resulting from the death of the mother was not decided, yet it is apparent that the controlling facts in the two cases could not be separated. The main defense in the Eugenia Stotler case was that her injuries were inflicted by reason of the negligence of her mother, and that she participated in or at least acquiesced in her mother’s negligence in driving upon the track in front of the approaching engine, and was therefore equally guilty of contributory negligence. In other words, we are unable to see how this court, In Banc, could determine the case of ' Eugenia Stotler without discussing the facts applicable to the negligence of the mother. It being conceded that the facts in the case at bar are substantially the same as in the Eugenia Stotler case, and if the conclusions as announced in that case, which were clearly applicable to the acts of the mother at the time of this accident, are to be followed, we see no escape from the result that the judgment in this cause must he reversed. The Eugenia Stotler case was decided by the Court In Banc and was concurred in by all the members of this court. It carefully discusses all the facts and exhaustively reviews all the authorities as applicable to them, and no one can read the opinion and escape the conclusion that the Court In Banc, under all the evidence in respect to this accident, regarded the acts of the mother, Mrs. Stotler, as constituting such negligence as would bar a recovery ■ in an action for her death. An analysis of the conclusions announced in that case will demonstrate that the affirmance of the judgment in favor of Eugenia Stotler was only affirmed upon the theory that she did not participate in and was not responsible for the negligence of her mother. After discussing the facts and reviewing all the authorities upon the subject in hand, the conclusion was thus stated: “Now, if this case be viewed from the standpoint of plaintiff’s evidence, she is presumed to have looked and listened and to have seen and heard the train. If it be viewed 'from the standpoint of defendants’ evidence, she actually did see the train when it was forty rods away, and she was still in a place of safety south of the track. The case, then, has progressed to the point where fault can be found with plaintiff,' if at all, not in her not looking and listening, in her not seeing and hearing the advancing train, but in the act of driving on the track immedia,tely before that train. The act in question was not hers; but if she actively participated in that act, or is responsible therefor, she ought not to recover. If she did not actively participate therein, and is not responsible therefor, then there is no independent cause intervening between defendants’ negligence and the injury, and that injury should be referred to defendants’ negligence alone.” Following this ihe court then gave particular stress to the theory that Eugenia Stotler was not responsible for the negligence of her mother, and fully discussed the reasons why she should not be held responsible for such negligence, and finally concluded by saying, concerning the conduct of Eugenia Stotler on that occasion, that “the truth is, she was but a broken branch cast on the stream of the mother’s judgment and volition, prone to be-borne away on its current; and, under such circumstances, defendants may not acquit themselves by pointing to the mother’s fault.”

It is manifest that there can be but one logical conclusion from what was said by the Court In Banc in that case, and that is, under the facts developed at the trial, which were substantially, as is conceded by counsel for plaintiff, the same as in the case at bar, by reason of the negligence of the mother, Mrs. Stotler, driving upon the track in front of an approaching engine there could be no recovery in an action against the defendants in causing her death. The conclusion as to the acts of Mrs. Stotler being negligent, as is clearly indicated in the case of her daughter, is fully supported by numerous well-considered cases in this State.

In Hayden v. Railroad, 124 Mo. 566, plaintiff sought to recover damages for the death of her husband who was struck and killed by one of defendant’s passenger trains on a public road crossing.. The petition charged that his death was caused by the negligence of the defendant in allowing prairie grass and weeds to grow upon its right of way and near said crossing, so as to obstruct the view of its tracks and in failing to sound the whistle or ring the bell on the approach of its train to said crossing, as required by law. The answer was a general denial and a plea of contributory negligence. The evidence tended to show that the servants of the railroad company were negligent in failing to give signals, but it also tended to show that .the deceased could have seen the train by looking. The husband of plaintiff was driving a two-horse team to a wagon and could have seen the' approaching train when it was from fifteen to thirty feet of the crossing. At the close of all the evidence the court sustained a demurrer thereto and plaintiff appealed. The court in that case stated that the train was traveling ten times as fast as deceased and that when he was in fifteen, twenty, twenty-five, or thirty feet from the crossing the train must have been within a distance of one hundred and fifty to three hundred feet of the crossing. The court then fully reviewed the facts and held that the testimony showed clearly that notwithstanding there was high grass intervening between the plaintiff’s husband and the train, that by the turning of his eye when in fifteen or twenty feet of the crossing he could have seen the train approaching, which was one hundred and fifty or three hundred feet away, and that his failure to observe the approach of the train and proceeding in his way across the track was such negligence as would bar recovery, and this court said in that case that “though the defendant may have been negligent in failing to give the signals for the crossing, and in permitting the high grass to be upon its right of way, yet the deceased having lost his life through his own negligence in failing to discharge the duty imposed upon him by law, in his situation, the plaintiff cannot recover .for his death.”

In Huggart v. Railroad, 134 Mo. 1. c. 679, Gantt, P. J., speaking for the court, said: “It is an uncontradicted and conceded fact that when he reached a point from thirty to forty feet from the track, a point where he was free from all danger of collision with trains upon the road, he could have seen up the track to the west a distance of six hundred and possibly one thousand- feet. As a physical fact that train was then in sight. One of two conclusions is inevitable: He either did not look, and heedlessly rode upon the track and was killed, or he looked and saw the approaching train and attempted to cross ahead of it. In either case he was guilty of such contributory negligence as bars a recovery by his widow. Porter Huggart is dead. We have no explanation of his conduct in attempting to cross the track in the face of a rapidly approaching train, but in view of the physical impossibility of his failing to see the train, had he looked to the west as it was his clear duty to have done, while yet out of danger, the law denominates his conduct in going upon the track and attempting to cross as contributory negligence. There can be no presumption of ordinary care in the face of such facts to the contrary and without explanation. [Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 362; Lane v. Railroad, 132 Mo. 4.]”

In Sanguinette v. Railroad, 196 Mo. 466, this court, speaking through Judge Burgess, denied plaintiff a recovery on the ground of negligence in attempting to cross the defendant’s railroad track in front of an approaching train, for the reason that proper care and caution was not exercised in listening and looking for the approach of such train. In this case the rule as announced in 3 Elliott on Railroads, section 1165, was quoted approvingly. It is there said: “As a railroad track is a warning of danger, one who attempts to cross it must act with care proportionate to the danger and not suffer his attention to he diverted from the danger before him, and he must keep his faculties in active exercise. It is his duty to keep his faculties in condition for exercise and to exercise them. Mental absorption or reverie will not excuse the traveler who omits to perform the duty of looking and listening. If the traveler could have seen the train, by looking, the presumption is that he did not look, or if he did look did not heed what he saw. This presumption, in conjunction with the fact that the courts judicially know that great throngs of persons daily cross railroad tracks without receiving injury, renders necessary and logical the conclusion that prima-facie an accident at a crossing is attributable to the negligence of the traveler. A. traveler who knows that a train is due must take care to avoid it, and this knowledge imposes upon him a somewhat higher exercise of care than if he was not in possession of such knowledge. Principle requires that in such a case a person who attempts to cross the track should be held guilty of negligence as matter of law if there are obstructions to sight or hearing, since no one can be said to exercise ordinary care who voluntarily encounters a danger that he knows is imminent, unless the situation and conditions are such as to enable him to see that he can proceed with safety. Analogous cases emphatically affirm that one who assumes to proceed upon a calculation of chances is guilty of negligence, and the rule established by those cases applies to such cases as we have mentioned.”

In Schmidt v. Railroad, 191 Mo. 1. c. 228, Judge Gantt thus stated the rules of law applicable to the subject under discussion: “It is a settled law of'this State that a person who goes upon a railroad track or proposes to cross it, must use his eyes and ears to avoid injury. And while a neglect of the regulations in regard to the running of trains amounts to negligence in law on the part of the railway company, this does not absolve pedestrians and others who propose to cross the tracks from the exercise of ordinary care. Every intelligent person who has arrived at years of discretion, is presumed to know that it is dangerous to be upon a railroad track when trains are passing to and fro, and when crossing one, he is expected to be vigilant and watchful of the approach of the locomotive. The failure to exercise such vigilance is negligence per se. [Harlan v. Railroad, 64 Mo. 482.] The law that a traveler, before entering upon a railroad track, must observe some caution for his 'own safety, and that a failure to do so will be such negligence as will preclude a recovery in case of injury, is as well settled in this State as is the law that a railroad company is guilty of negligence in running a train without. observing the reasonable precaution required by law or ordinance. The measure of precaution to be observed by a traveler depends often upon the circumstances and surroundings. The general rule is that in knowingly approaching the track of a railroad, he must use his sense of sight or hearing to ascertain if there be danger. If the view is so obstructed that be cannot see, he should carefully listen. The circumstances may not require that he both look and listen, but common prudence requires that he do either one or the other, and a failure to do so-renders his act' negligence in law. The rule of contributory negligence is not changed or abrogated by reason of a statute or ordinance imposing the duty on account of the violation of which the injury resulted. [Weller v. Railroad, 120 Mo. 653.] The statute does not absolve persons approaching a public railway crossing from exercising common prudence to avoid danger, nor shift the responsibility to another should injury ensue from the failure to exercise it. [Kenney v. Railroad, 105 Mo. 284.] ”

In Boring v. Railroad, 194 Mo. 541, the testimony tended to show that the plaintiff did not stop or look to see if a car was approaching from the east, from the time he left the sidewalk at the northeast corner of Cherry and Fifteenth streets until the moment the car struck him. The distance between the point where he made the turn, at the northeast corner o'f said streets, and the point where he attempted to cross the track was but comparatively a few feet, and there is no evidence tending to show that the gripman could, by the exercise of due care and diligence, have stopped the car in time to have prevented the accident. Burgess, .1., in announcing the conclusions of this court, said: “The evidence shows that the plaintiff was unobservant, careless of his safety, and walked into danger. There is nothing disclosed by the record which would justify the submission of the cause to the jury.”

In Reno v. Railroad, 180 Mo. 469, this court again said in discussing the proposition now under consideration, that, “from the. testimony of plaintiff, and that given in her behalf, one of two inferences must be drawn, either that plaintiff saw the ear and attempted to pass in front of it, or that she did not look for the car’s approach and attempted to cross over the tracks in disregard of it, and in either case, she was guilty of negligence which at least contributed to her injury.”

In Kelsay v. Railroad, 129 Mo. 1. c. 372, Judge Maceareane, in treating of this proposition, stated the rule in this way, that, “the duty of a traveler upon a highway, in approaching a railroad crossing, to use all reasonable precautions to ascertain the approach of trains and to avoid injury by them is well-settled law, not only in this court, but perhaps of all the courts of this country. This rule imperatively requires him to ■ look carefully, in both directions, at a convenient distance from the crossing, before venturing upon it, if, by looking, a train could be seen. The duty will not be performed by attempting to look only from a point at which the view is obstructed. The duty is a continuing one until the crossing is reached. If there is a point between the obstruction and the track which gives opportunity to see, it is the duty of the traveler to look. He cannot close his eyes and thereby relieve himself of the consequences of his own neglect. [Hayden v. Railroad, 124 Mo. 566.]” The esteemed and learned judge, in further discussing the proposition in hand, approvingly made this quotation. He said: “It was said in a recent case: ‘It is simply and flatly impossible that one can stop, look, and listen for an approaching train that is in plain view and close at hand and be unable to see or hear it, if he possesses the senses of sight and hearing. It seems, therefore, necessary to advance one step in the application of the doctrine of legal presumption, and to lay it down as a rule that one who is struck by a moving train which was plainly visible from the point he occupied, when it became his duty to stop, look, and listen, must be conclusively presumed to have disregarded that rule of law and of common prudence, and to have gone negligently into an obvious danger. A line of well-considered cases leads fairly up to this conclusion.’ [Myers v. Railroad, 24 Atl. 747.] ’ ’

There are numerous other cases in this State announcing the same rule as is indicated hy the foregoing quotations. [Walker v. Railroad, 193 Mo. 453; Stepp v. Railroad, 85 Mo. 229; Mockowik v. Railroad, 196 Mo. 550; Hixson v. Railroad, 80 Mo. 340; Kelly v. Railroad, 88 Mo. 534; Lenix v. Railroad, 76 Mo. 86; Harlan v. Railroad, 64 Mo. 480; Zimmerman v. Railroad, 71 Mo. 476.]

Learned counsel for respondents makes a very strong présentation upon his theory of this cause, and undertakes to distinguish the cases herein referred to from,the case at bar. It is earnestly insisted by respondent that the deceased, Mrs. Stotler, had a right, under the facts developed at the trial of this cause, to presume that the defendants were obeying the ordinances of the town of Laddonia and were not operating the train at a speed in excess provided by such ordinanees; therefore, contributory negligence, under the circumstances, should not he attributed to her. In responding to this contention it is sufficient to say that the recent case of Green v. Railroad, 192 Mo. 131, furnishes a complete answer. In that case it will he observed that the train was being operated at a rate of speed in excess of the provisions of the ordinances of the town of Pacific. It was insisted by counsel in that cause, as is contended in the case at bar, that the deceased had the right to invoke the presumption that the train was not running in violation, of such ordinances, and the case of Hutchinson v. Railroad, 161 Mo. 246, was cited and relied upon by counsel as maintaining that doctrine. Valliant, J., speaking for the court, very clearly draws the distinction between the cases, and he thus answered the contention of the respondent in that case: “The facts in this case are very different from those in Hutchinson v. Railroad, 161 Mo. 246, to ■which, we are referred. In that case it was after -dark in the evening, the deceased heard the whistle and saw the headlight of the engine about half a mile distant when she started across the tracks; if the engine had been running within the six-mile speed limit she would have had ample' time to cross, even pausing as she did to pick up a scarf she had dropped. The court held that, in the' absence of proof that she knew or had reason to apprehend to the contrary, she had a right to presume that the engineer was observing the ordinance and to regulate her movements accordingly. But the accident we are now discussing did not occur at night; it occurred at nine o’clock in the morning, and the plaintiff’s witnesses say that they saw that the engine was running at a high rate of speed. There was not one of them shown to be more competent to judge of the speed than the deceased; the only difference in that respect between them and her was that they looked and she did not. If one sees or has reason to believe that the engine is running in violation of the speed ordinance he has no right to risk his life on a presumption that the ordinance is being observed. There is in this case no ground on which to construct a rational presumption that the deceased trusted that the engineer was obeying the ordinance. There is no evidence on which we can base a finding that she saw the engine at all until in the moment of peril. It was imminently, dangerously close when she stepped on the track. All the eyewitnesses say she was coming fast, she put her foot over the rail and in that instant the engine struck her. She was probably in a hurry to overtake her friends who had gone on. ahead.and she was possibly in a state of nervous excitement at having to pass so close to the front of the throbbing freight engine, but however that may be, and whatsoever the cause, she forgot to look at the danger into which she was running. ’ ’

So it may be said in this cause, applying the same ruling as was employed in the Green case, that this accident occurred in broad daylight, and that numerous witnesses testified for the plaintiff that they saw that the engine was running at a high rate of speed, and it is apparent that Mrs. Stotler, when in from forty to sixty feet of the main track, if she looked and saw the engine approaching, was just as competent to judge of thé speed and even more so, located as she was, than any of the witnesses who testified in her ber half. The testimony simply shows that she was driving the horse in a buggy, with the top down, in a trot, and that she never checked the speed, and there seemed to be no checking of it until she was on the' track and struck by the engine. The testimony of the only eyewitness to this accident'rather indicates that she never looked one way or the other in respect to seeing the approach of an engine. While this testimony is of a negative character, he says that he was looking at her and that he did not see her turn her head to look at all and did not see her make any step or check the speed of her horse. We take it that the care and caution that is required of a traveler in crossing a railroad track simply means, practical- and common-sense prudence, before undertaking to cross a dangerous place, and confronted with the manner in which Mrs. Stotler drove upon this track, it would be doing violence to the meaning of the terms “prudence and caution” to say that, if she saw that train approaching as it did approach this crossing at a very rapid rate, she was exercising any prudence or caution whatever, under the conditions confronting her, to undertake to hurriedly drive across the track in front of a rapidly approaching engine. As was said by Judge Valliant in the Green case, “there is in this case no ground on which to construct a rational presumption that the deceased trusted that the engineer was obeying the ordinance.” As before stated, she never stopped, and in onr opinion the ordinances fixing the rate of speed or the rate of speed at which the engine was being operated, never entered her mind. If she saw this engine approaching this crossing when she was from forty to fifty feet of the main track,- common practical prudence and caution would certainly have dictated the waiting of only a few seconds for the engine to pass and this accident would have been avoided.

We are unwilling to say, under the conditions confronting Mrs. Stotler, an: engine approaching the crossing at a very high rate of speed, which was just as apparent to her as it was to the witnesses who undertook to fix the rate of speed, that it was the exercise of even the most ordinary care and prudence to undertake, under the circumstances, while rushing along to cross the tracks, by mental process or reasoning, to figure out how long it would take the engine to' reach the crossing. Under the facts disclosed in this record, the exercise of ordinary practical prudence and caution would have required her to stop until the engine passed.

We have indicated our views upon the controlling propositions disclosed by the record, which renders it unnecessary to discuss the other complaints urged by the appellants. Entertaining the views as herein expressed, it results in the conclusion that' the judgment of the trial court should be reversed, and it is so ordered.

All concur.'


author: BURGESS, J.

text:
    EMPIRE BUILDING COMPANY, Appellant, v. HOPKINS.
    Division Two,
    June 11, 1907.
    1. INSTRUCTIONS: No Exception. Where the court modified an instruction directing a finding for planitiif by adding the words, “unless the court finds the facts to be as stated in defendant’s instruction number one,” and no exception was saved at the time to the giving of defendant’s instruction number one, defendant’s instruction must be regarded as correctly presenting the law of the case, and an objection made to it for the first time in the motion for a new trial cannot be considered. Without an exception saved at the time it must be held that the court committed no error in adding the words to plaintiff’s instruction.
    2. -: -: Lease and Release. And where the suit was on a lease, and the court modified plaintiff’s instruction directing a finding for plaintiff by adding the words, “unless- the court finds the facts to be as stated in defendant’s instruction number one,” and defendant’s instruction number one declared that if the court, sitting as a jury, “finds from the evidence that the defendant, before the expiration of the lease in question, surrendered the premises therein described to the lessor, and such surrender was accepted by the lessor pursuant to agreement between the parties that in consideration of such surrender the plaintiff would release the defendant from liability for the delinquent and future rents, then plaintiff cannot recover,” and no exception was saved to the giving of that instruction, it must be held to have correctly stated the law of the case, and is not reviewable, and a finding for defendant that before the expiration of the lease the defendant surrendered the premises and plaintiff released him from further liability thereunder, is conclusive, and the judgment must stand.
    Appeal from St. Louis City Circuit Court. — How. Horatio D. Wood, Judge.
    Affirmed.

      Daniel Dillon for appellant.
    It is plain that the words inserted by tbe court into plaintiff’s instruction 1 carried tbe vice of defendant’s instruction 1 into plaintiff’s instruction 1, and made it erroneous. There was no substantial evidence on which to base defendant’s instruction 1. It is plain that there was no surrender of the premises before the expiration of the lease to the lessor. There could con- . sequently be no acceptance of such surrender. To give instructions not based on the evidence, or, in other words, to instruct a jury to find in favor of a party if they find certain facts, when there is no evidence which would justify them in finding such facts, is erroneous. This is elementary. Franz v. Hilterbrand, 45 Mo. 121; McAtee v. Vanlandingham, 75 Mo. App. 53; Palmer v. Telephone Co., 91 Mo. App. 115; Chemical Co. v. Lackawana Line, 70 Mo. App. 284; Wasson v. McCook, 70 Mo. App. 397.

      Bassieur, Schrmrmacher S Bassieur for respondent.
    (1) If there is any evidence to support the finding, it is the duty of the appellate .court to affirm the judgment. (2) The evidence shows a valid surrender of the leased premises by the lessee, the acceptance of the same by the lessor, and the substitution of a new tenant in the place and stead of the original lessee. Taylor on Landlord and Tenant, secs. 507, 509, 514, 515; Wood on Landlord and Tenant, secs. 497, 498. (3) The purpose for which the premis.es were let was unlawful. Sec. 2127, R. S. 1899. Where a lease is obtained for a purpose prohibited by law, and the lessor has knowledge of such intent and purpose, no right of action can be maintained on the lease. Ashbrook v. Dale, 27 Mo. App. 649; St. Louis Fair Assm v. Carmody, 151 Mo. 573; Tri-State Co. v. Amusement Co., 192 Mo. 423. And if such unlawful purpose is shown by plaintiff’s own evidence, it is immaterial whether the illegality of the transaction was pleaded or not. Mil-burn v. Railroad, 86 Mo. 109; Hudson, v. Railroad, 101 Mo. 30; Chaney v. Railroad, 176 Mo. 606.
   BURGESS, J.

This is a suit for the rent of a building known as the West End Coliseum, in the city of St. Louis, under a lease dated February 19, 1902, by and between plaintiff as lessor, and the defendant as lessee. This lease was for a term of twelve months, from January 1 to December 31, 1902, the rental being three thousand, six hundred dollars a year, to be paid in equal monthly payments of three hundred dollars, payable in advance on the first day of each month. The lease provided that “Said term may be terminated at any time by either party hereto, by thirty days’ notice in writing served on the other party declaring its or his intention so to do. Any failure to pay each month’s rent when due, or within five days after demand of the same, to produce a forfeiture of this lease, if so determined by said lessor or his successors. The . lease of said premises, or any part thereof, is not assignable under penalty of forfeiture, without the written consent of the said lessor. And it is hereby covenanted that at the expiration of this lease, the said premises are to be surrendered to said lessor, its assigns or successors, in the condition received, only excepting natural wear and.decay, or the effects of fire.” There was also a clause in the lease by which the lessee agreed to pay double rent for every day he, or anyone else in his name, should hold on to said premises, or any part thereof, after the expiration of the lease.

The petition contained two counts, the first of which alleged that the monthly installment of the rent that became due on September 1, 1902, hád not been paid, except that the sum of forty dollars was paid on account of such rent, and that neither the defendant nor any one for him had paid either of the subsequent maturing installments of rent, or any part thereof, and that there was due plaintiff from defendant the sum of one thousand two hundred dollars as rent for said premises from the 31st day of August, 1902, to the 31st day of December, 1902, less the credit of forty dollars as aforesaid.

The second count of the petition alleged that defendant remained in said premises and held onto the whole thereof for nine months and twenty days after the expiration of said lease by limitation, from December 31,1902, to October 21,1903, and that by the terms of said lease defendant became liable and obligated to pay plaintiff rent at the rate of six hundred dollars per month for said period of time, said rent for such period amounting to $5,800, for which judgment was prayed.

The answer contained a general denial of the allegations of each count of the petition, and a further defense to the effect that on or about the--day of November, 1902, the premises mentioned were surrendered by the defendant to the lessor, who, in consideration thereof, agreed to release defendant- from all liability to plaintiff for rent then due or thereafter accruing under said lease, and that such surrender was accepted by plaintiff on said terms and that after January 1, 1903, said premises were occupied by the West End Athletic Club as tenant of plaintiff. The reply was a general denial.

The-cause was tried by the court, a jury having been waived, and the issues on both counts found in favor of the defendant, from which judgment plaintiff appeals.

It seems that prior to February 19', 1902, the date of said lease, the premises in question were occupied by an incorporated club known as the West End Physical Culture Club or West End Club, whose business and purpose was the giving of public boxing exhibitions, and it would appear that in February, 1902, the said. club as tenant was required to get some one to assume responsibility for it, and accordingly, plaintiff, as less- or, gave to tbe defendant, John D. Hopldns, a lease for tbe term of twelve months.

At the trial tbe lease in question, signed'by tbe plaintiff and defendant, and containing tbe provisions above referred to, was read in evidence. It was admitted at tbe trial that tbe rent was paid up to September 1, 1902, and that forty dollars were paid applicable to tbe rent for September, and that no rent was paid applicable to rent after September 1, 1902, except said forty dollars.

"W. H. Stevenson testified that be was tbe agent of tbe plaintiff and that this rent account was á running account; tbe payment being put on the credit side and tbe rent charged on tbe debit side. Tbe account never balanced; that by direction of defendant and tbe attorney for plaintiff be wrote tbe receipts for rent on account. This witness testified that the defendant did not surrender tbe premises to plaintiff on December 31,, 1902, and that plaintiff, about February 1, 1903, brought suit against tbe defendant before a justice of the peace for possession of said premises and that plaintiff did not get possession till October 21, 1903. It was admitted at the trial that plaintiff brought another suit for possession of these premises before Justice Carroll on April 1, 1903, which was dismissed October 21, 1903.

The evidence showed that tbe premises in question were used for tbe purpose of giving exhibitions, such as prize fights, etc. Tbe place was conducted in the name of tbe JVest End Athletic Club, and was managed by a man named Haughton. A charge for admission to those exhibitions was made, and money was collected in this way. Stevenson testified that in November, 1902, the defendant, in the presence of Mr. Haughton, authorized him (Stevenson), to go into the box office on the evenings of these exhibitions and receive from the cashier what money he -could get after the expenses of the entertainment were paid, and apply it to the rent, and give receipts therefor, showing how much had been received from defendant on account of rent, and that after that he did attend on certain evenings and receive from the cashier certain sums of money and give receipts therefor as directed, and left the receipts with TIaughton, or whoever was in charge, and that the moneys so collected were credited to defendant in the rent account.' He further testified that in April, 1903, he, in company with Mr. Thompson, the president of plaintiff, called on defendant and asked him why he did not give up possession of these premises, and defendant said he would give up possession, and that witness said to him, “You say you will give up- possession, and yet you- defend every suit that is brought against you?” And defendant said, “Yes, I know you have put me to- a great deal of expense-for lawyers.”

Judson M. Thompson testified that he was president of plaintiff company, and in the spring of 1903, in company with Mr. Stevenson, called on defendant, and Stevenson asked defendant why he could not -get possession of the place, and defendant said: “I will give you possession.” This witness testified that plaintiff did not get possession of said premises until October 21, 1903.

Defendant testified that the premises described in the lease were occupied by the West End Club before the making of the lease; that the club had been unsuccessful and wanted defendant to go on a lease for a year; that Jesse McDonald (who was attorney for plaintiff), would not accept that way, and defendant took a lease for a year in his own name, and the club operated under it; that defendant paid the first month’s rent, but paid no more himself. Defendant further testified that in November, 1902, he'and Haughton saw Mr. Stevenson, who told them the rent had not been paid, and was in arrear; that witness told Stevenson that he (witness), had no interest in it, and went on the lease only to help Hanghton; and Hanghton showed Stevenson that a number of .matches (fights), had been "arranged for, and Stevenson agreed to go in the box office, and take the profits, and said that Hanghton released him; Stevenson was to go to the box office and get the net receipts, all that was not paid out for expenses. He further testified that he saw Stevenson in the box office, and that after that Stevenson did not come to him and ask for rent, and did not ask for possession until the institution of the suit that was served on him, and that when this suit was served on him he sent the notice of the suit to Mr. Haughton.

On cross-examination, witness testified that when he executed that lease it was with the understanding that the business was to be operated by the West End Club, and that he had nothing to do with the management of the concern; that he did not personally pay any rent other than the first or second monthly payment, and that he did not keep any check on the payments of the rent made by Haughton for which he was responsible under the lease. He further testified that when he received the summons in the suit for possession he sent the papers to Haughton with instructions to relieve him (defendant) of all responsibility and trouble connected with it, and Haughton said he would attend to the case. He said he gave the lease to Haughton ; that he believed he assigned it, but was not sure; he paid little attention to it, the people (meaning Haughton and the West End Club), assured him they would attend to the rent.

Haughton testified that he was president of the West End Club which had been in possession of the premises before the lease to defendant, and that defendant had never been interested in the club except to help them. This witness further testified that about November, 1902, he took defendant to the office of Mr. Stevenson, and defendant told Stevenson to go in the box office and if there was any money left over after paying expenses that Haughton had agreed to see that he (Stevenson) got it, and Stevenson said something like “all right” and came out to the box office the next entertainment; the rent was then delinquent. In this connection this question was asked the witness and he gave the following answer: “Q. Well, was anything said about releasing Hopkins (defendant) from the lease either accrued or accruing! Ans. I wouldn’t want to say, I can’t remember the exact conversation. I can’t remember. Anyone knows me knows I have not the best memory in the world, anyhow, and I only know that after then Colonel Stevenson was at every bout and was up in the office and around the box office and saw the checking up and everything, and if there was any money left over, why Colonel Stevenson got it and I took a receipt from Colonel Stevenson for so much on rent account.” This witness, continuing, said that after that Stevenson attended every entertainment and went in the box office and saw the money counted and saw what money was paid out and if there was a balance left it was turned over to him and he gave a receipt every night for the amount he got. He further said, I have here five receipts which he gave on those occasions, I do not know how much rent was paid in this way. On cross-examinaton the witness was questioned and made answers as follows:

Q. I wish you would state again what you say was said in Mr. Stevenson’s office about November 20, preceding "the first night he went to your place: I wish you would repeat that substantially. Ans. I went to the ,C. & A., office1 — Col. Hopkins is around the C. & A. office a good deal — and I got hold of him, and I think the day before I had the conversation with Col. Stevenson, and he thought there was a lot of money being made, and I knew there wasn’t, and I says, “I’ll get up some kind of an arrangement,” and I wanted to see Col. Hopkins. He says, “I haven’t seen Col. Hopkins.” I says, “I’ll bring Col. Hopkins down here to see you,” and I went in the C. & A. office and met Col. Hopkins and just took hold of him and went down the street to Col. Stevenson’s office, and we went in there and I think Col. Hopkins made the statement to Col. Stevenson that, “If you can get the money out of these people,” he says, “I can’t,” something to that effect. “Well,” he says, “I am perfectly willing to let Col. Stevenson g’O in the box office and see the money come in, and stay with that money, and go upstairs and see the money disbursed, and let him take any moneys that remain over after paying the expenses of the entertainment,” and they had some kind of an understanding to that effect, which was mutally agreeable to these two people, because he came out after that and was in the box office every time.
“Q. Is what you have related all you have heard? A. I guess I heard more than that, but unless something was brought to remind me of it, you know, some little thing, I couldn’t bring it up. Q. Is that all you recall now? A. That’s all I can think of.”

McNeil, a witness for defendant, testified that he had been assistant treasurer of West End Club, and that beginning in November, 1902, Mr. Stevenson came into the box office on the evenings of entertainments, and was present when the receipts and disbursements were checked up and received whatever balance was left over.

Haughton was recalled by plaintiff for further cross-examination, and testified that in some suits before justices of the peace he was regarded as agent of J. L. Hopkins (the defendant), and that he had got a continuance once by saying he was agent for the defendant, Hopkins, and that he also swore to an affidavit for a change of Venue, as agent of Hopkins, and that he resisted these suits’ on the basis of fighting for himself and never had any conversation with Hopkins about them, and that the only thing he got from Hopkins was a notice which Hopkins mailed him; and that Hopkins was not in town at the time, and witness never went near him, and witness did not think that Hopkins knew about the suits.

In rebuttal, Mr. Stevenson testified that at the interview in his office, in November, 1902, Mr. Hopkins (the defendant), did not propose that Stevenson should take the proceeds of the box office and release Hopkins from the rent, and that such a statement was never made at any place, and that there never’ was a proposition to do anything towards releasing Hopkins, and never a suggestion of it, and that there never was a suggestion at the interview that the West End Club should he tenant of the Empire Building Company.

The court gave declaration of law number 1 upon the part of plaintiff and also one upon the part of the defendant.

Plaintiff’s declaration of law, number 1, as asked, was as follows:

“The court declares the law to he that if it find from the evidence that on or about the 19th day of February, 1902, plaintiff and defendant entered into a written lease for the premises known as, the West End Coliseum, in St. Louis, Missouri, for a term commencing on the first day of January, 1902, and ending on the 31st day of December, 1902, and if it further find that the defendant paid nothing on account of the rent for the months of September, October, November, and December, 1902, therein contracted to be paid, except the sum of forty dollars on account of the month of September, 1902, then its judgment shall be for the plaintiff and against the defendant for the first canse of action in plaintiff’s petition set forth in the snxn of one thousand, one hundred and sixty dollars.”

Over the objection and exception of plaintiff, this declaration of law, as asked, was refused, and then amended by the court by adding thereto the words “unless the court finds the facts to be as stated in defendant’s instruction number one,” and then given as amended. ,

Defendant’s declaration of law, number one, to which there does not appear from the record to have been any objection at the time it was given, reads as follows:

“If the court, sitting as a jury, finds from the evidence that the defendant, before the expiration of the lease in question, surrendered the premises therein described to the lessor, and such surrender was accepted by the lessor pursuant to an understanding or agreement between, the parties that in consideration of such surrender the plaintiff would release the defendant from liability for the delinquent and future accruing rents, then the plaintiff cannot recover upon either count of the petition.”

Plaintiff insists that the court, committed error in giving said declaration of law for defendant, and in changing plaintiff’s declaration number one by inserting the words, “unless the court finds the facts to be as -stated in defendant’s instruction number one.” It is argued by plaintiff that the words thus inserted by the court carried the vice of defendant’s declaration of law into plaintiff’s declaration number one, and made it erroneous; but inasmuch as the abstract fails to show that the action of the court in giving said declaration of law for defendant was excepted to at the time, the objection made to it in the motion for a new trial and in this court cannot be considered. [Waller v. Railroad, 83 Mo. 608.] In State v. Reed, 89 Mo. 168, the court gave five instructions which covered every issue presented by the pleadings and the evidence. The defendant asked no other or additional instruction, and made no objection to those which were given on the trial and for the first time complained of them, as in this case, in the motion for new trial. The court said: “The rule is well settled in civil cases that exceptions must be saved to the ruling of the court at the time the ruling complained of is made, and that it is not sufficient to make the objection for the first time in a motion for a new trial. This rule applies to instructions as well as any other matter'of exception.” [See, also, Randolph v. Alsey, 8 Mo. 656; Dozier v. Jerman, 30 Mo. 216; Houston v. Lane, 39 Mo. 495.]

So that plaintiff’s criticism upon defendant’s declaration of law can avail it nothing, and the declaration! must be regarded as correctly presenting the law of the defense. This being true, no error was committed by the court in adding the words complained of to plaintiff’s declaration of law. Defendant’s declaration of law being correct, as it must, under the circumstances, be • so regarded, the finding of the court is conclusive that before the expiration of the lease the defendant surrendered the premises in question to the lessor, and that such surrender was accepted by it pursuant to an understanding between the parties that, in consideration of such surrender, the plaintiff would release the defendant from liability for the delinquent and future rents. Plaintiff having failed to interpose am objection to this instruction, it is not now in a position to say that it is not the law, or that there was not evidence upon which to predicate it.

It is said for plaintiff that the court erred in refusing declaration of law number six asked by plaintiff. This requested declaration, it seems to us, is rather an abstract proposition of law and not justified by any issue in the case; hence, there was no error in refusing it.

There was substantial evidence to authorize the ■finding and judgment of the court which tried the case, and, in our opinion, the judgment should not he interfered with. It is, therefore, affirmed.

All concur.