author: GANTT, J. PER CURIAM:

text:
    PHIPPIN v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division Two,
    May 22, 1906.
    1. NEGLIGENCE: Conflict in Evidence: Province of Court. Where the evidence as to whether the act which led to the injury was negligently performed is conflicting, even that of defendant not being in harmony, it is the province of the jury to settle the issue: and if there is substantial evidence to sustain the verdict, as there was in this case, it is no part of the province of the court to say that the testimony was so overwhelmingly against plaintiff as to be entitled to no consideration.
    2. -: Cornering Cars: Act of Fellow-Servant. The rails of two tracks approached close to each other, so that cars run hack on one of them would collide with a stationary car on the other, and the charge was that while plaintiff, a switchman, was at his post at the stationary car, prepared to effect a coupling, the switchtender, contrary to his duty, turned the moving cars onto the wrong track, and they cornered with the stationary ear and mashed plaintiff’s hand. The foreman and yardmaster testified that it was the duty of the switchtender to so line the switches that the cars would not corner, and there was substantial evidence that the switchtender from his position could have seen that the moving cars would collide with the stationary car if run on the other track, that he turned 196 Sup.—21 them on to that track, that the night was dark and plaintiff could not see, and was in the exercise of ordinary care. Held, that the switchtender was negligent, and being a fellow-servant of plaintiff, the defendant was liable under section 2873, Revised Statutes 1899.
    3. -: Testimony in Conflict With Physical Facts. It is the law of this State that where the established physical facts and common observation and experience conflict with the testimony of a witness, his testimony must yield and cannot be accepted as the basis of a verdict or judgment. But whether a given case falls within this rule must be determined by its facts.
    4. -: -: Cornering Cars: Switchman: Contributory Negligence: Seeing Danger. Where a switchman was at his post at stationary cars, attending to the duties devolved upon him to make a coupling with an approaching car, it is a question for the jury to determine whether or not, under the circumstances, he was guilty of contributory negligence in not seeing that the approaching car was on the wrong track and, would, because of the close proximity of the tracks, corner with the stationary car, and injure him, the car having been negligently placed upon the wrong track by the switchtender.
    5. -: Cornering Cars: Assumption of. Risk. The servant never assumes the risk of the master’s negligence. 'A switch-man, whose duty it was to make couplings of cars in a track yard, did not assume the l’isk of injury from cars cornering with each other, where the cars were made to so corner by the switchtender who negligently turned some of them on to the wrong track, for the negligence of the switchtender was the negligence of the company.
    6. -: -: Instruction: Assumed Negligence. Plaintiff’s instruction told the jury that “if they believe and find from the evidence that plaintiff was attempting to couple a certain stationary freight car, to a certain moving car backwards toward the same for the defendant railroad company, and his right hand and wrist were caught between the corners of said cars and injured, and that the said injury was caused by the negligence and carelessness of the switchtender, in throwing the switch for track No. 17 instead of track No. 18, thus causing the corners of the cars to collide and come together with force and violence, and that plaintiff was at the time in the exercise of ordinary care, then your verdict must be for plaintiff.” Held, that this instruction did not assume that throwing the switch for track No. 17 was a negligent and careless act, but plainly required the jury to find that the injury was caused by the negligence and carelessness of the switchtender.

      7--: Excessive Verdict: $12,000. Plaintiff was an experienced brakemau, forty-four years old, and had been receiving $90 per month. His right hand was crushed, so that it had to be cut away, leaving nothing but the thumb, which is stiff and a useless deformity. He underwent intense pain for six months, and at the time of the trial the stump was raw and unhealed. Held, -at the hearing, that a verdict for $12,000 was not excessive, but on rehearing the amount is reduced to $9,000 and interest from date of verdict.
    8. REHEARING: New Question: Appellate Practice. An appellant cannot inject into the case on motion for rehearing a proposition which was not insisted upon either in the trial court or in the appellate court until after a final judgment and opinion.
    Appeal from Jackson Circuit Court.— Hon. J. H. Slover, Judge.
    Affirmed on condition.

      Elijah Robinson for appellant.
    (1) The trial court should have directed a verdict for defendant. 1. There was no evidence tending to show negligence on the part of defendant. The mere fact that an accident occurred does not raise a presumption of negligence on the part of the defendant. It was necessary that plaintiff establish, by substantial evidence, his allegation of negligence on the part of defendant, which he failed to do. Blumenthal v. Torini, 40 Mo. 159; Rea v. Ferguson, 72 Mo. 225; Crane v. Timberlake, 81 Mo. 481; Avery v. Fitzgerald, 94 Mo. 207; Long v. Moon, 107 Mo. 334; McFarland v. Accident Assn., 124 Mo. 204; State v. Bryant, 134 Mo. 246; Hewitt v. Steele, 136 Mo. 327; Cole v. Armour, 154 Mo. 333; Ashley v. Creen, 38 Mo. App. 292; Kehoe v. Phillipi, 42 Mo. App. 292; Heintz v. Mertz, 58 Mo. App. 405; Moore v. Railroad, 28 Mo. App. 622; Peck v. Railroad, 31 Mo. App. 123; Peffer v. Railroad, 98 Mo. App. 291; Shertle v. Railroad, 97 Pa. St. 450. 2. The accident was caused by the cars cornering, which was a common occurrence. The danger of a switchman getting his hands injured is an ordinary risk of Ms employment, and by undertaking the work he assumes all its ordinary risks. Steffen v. Mayer, 96 Mo. 420; Jackson v. Railroad, 104 Mo. 448; Schaub v. Railroad, 106 Mo. 74; Alcorn v. Railroad, 108 Mo. 81; Henry v. Railroad, 109 Mo. 488; Francis v. Railroad, 110 Mo. 387; Ring v. Railroad, 112 Mo. 220; Halloran v. Union Iron Co., 133 Mo. 470; Williams v. Railroad, 119 Mo. 316. 3. Plaintiff was himself guilty of negligence which directly contributed to the accident. If he had exercised reasonable and ordinary care the accident would not have occurred. Dolphin v. Railroad, 29 Am. & Eng. R. R. Cases (N. S.) 341; Aerkfest v. Humphrey, 145 U. S. 418; Kitzberger v. Railroad, 30 Am. & Eng. R. R. Cases (N. S.) 275. The physical facts show beyond question that he could have discovered that the approaching car was on track 17 in time to avoid the accident, and his statement to the contrary stands for nothing. Hayden v. Railroad, 124 Mo. 566; Kelsey v. Railroad, 129 Mo. 362; Nugent v. Milling Co., 131 Mo. 258; Lane v. Railroad, 132 Mo. 4; Huggart v. Railroad, 134 Mo. 680; Payne v. Railroad, 136 Mo. 583; Oglesby v. Railroad, 150 Mo. 188; Hook v. Railroad, 162 Mo. 598; Petty v. Railroad, 179 Mo. 687; O’Keef v. Railroad, 81 Mo. App. 386; Coveil v. Railroad, 82 Mo. App. 180. Where a verdict is against every reasonable probability that might result from the evidence in the case, the inevitable conclusion must be that it was the result of partiality or prejudice on the part of the jurors, and a judgment based on such a verdict must be reversed. Jeans v. Morrison, 99 Mo. App. 208; Gage v. Trawick, 94 Mo. App. 307; Cook v. Railroad, 94 Mo. App. 417; Baker v. Stonebraker, 36 Mo. 345; Price v. Evans, 49 Mo. 396; Bautrain v. Railroad, 78 Mo. 44; Rosecrans v. Railroad, 83 Mo. 678; Spohn v. Railroad, 87 Mo. 74; Cannon v. Moore, 17 Mo. App. 92. (2) The court committed error in giving plaintiff’s instruction 1. Said instruction assumed that it was negligence on the part of defendant’s switch-tender to pnt the car in question on track 17, instead of track 18. Peck v. Ritchey, 66 Mo. 121; Comer v. Taylor, 82 Mo. 341; Strong v. Hunt, 94 Mo. 475; Sweeney v. Railroad, 150 Mo. 385; Plummer v. Milan, 70 Mo. App. 598; Linn v. Bridge Co., 78 Mo. App. Ill; Orscheln v. Scott, 79 Mo. App. 541. (3) The amount of the verdict was so grossly excessive that it raises a presumption of prejudice, passion or partiality on the part of the jury. Burdick v. Railroad, 123 Mo. 236; Hollenbeck v. Railroad, 141 Mo. 113; Whalen v. Railroad, 60 Mo. 323; Adams v. Railroad, 100 Mo. 555; Nichols v. Glass Co., 126 Mo. 55; Furnish v. Railroad, 102 Mo. 438; Chitty v. Railroad, 166 Mo. 435.

      Walsh S Morrison for respondent.
    (1) Gibbony, the switchtender, was unquestionably negligent in throwing the switch for track 17 instead of track 18. R. S. 1899, sec. 2873; Black v. Railroad, 172 Mo. 177; Cambrón v. Railroad, 165 Mo. 543; Callahan v. Railroad, 170 Mo. 496. (2) Plaintiff was not guilty of contributory negligence. Cambrón v. Railroad, 165 Mo. 560; Hollenbeck v. Railroad, 141 Mo. 110; Young v. Oil Co., 185 Mo. 668; Barry v. Railroad, 98 Mo. 70; Hamilton v. Mining Co., 108 Mo. 364. This couid will not undertake to settle contradictory statements of witnesses and usurp' the province of the triers of fact. Wright v. Kansas City, 88 S. W. 456. (3) The question of assumption of risk has no place in this case. Gibbony’s negligence was the negligence of the defendant, and an employee never assumes the risk of the master’s negligence. Curtis v. McNair, 173 Mo. 280; Wendler v. People’s House Furn. Co., 165 Mo. 527; Warren v. Railroad, 87 S. W. 585; Blanton v. Dold, 109 Mo. 64; Settle v. Railroad, 127 Mo. 336; Pauck v. St. L. D. B. Co., 1591 Mo. 467. (4) Plaintiff’s instruction 1 does not assume that the switchtender was negligent, but submits that question to the jury as a question of fact. Geary v. Railroad, 138 Mo. 251; Damman v. St. Louis, 152 Mo. 186; State v. Grayor, 89 Mo. 605; O’Connell v. Railroad, 106 Mo. 482; Railroad v. Gore, 202 111. 195; Railroad v. Smith, 22 Neb. 782; Railroad v. Lehmberg, 75 Tex. 66. But under the evidence in this case on behalf of both plaintiff and defendant, tbe trial court would have been justified in declaring as a matter of law that Gibbony was negligent, and such an instruction would not have- constituted error. Fullerton v. Fordyce, 144 Mo. 529, 121 Mo. 1; Schmidt v. Railroad, 163 Mo. 658; Barry v. Railroad, 98 Mo. 62. (5) The verdict is not excessive. Dougherty v. Railroad, 97 Mo. 647; Chitty v. Railroad, 166 Mo. 443; "Waldheir v. Railroad, 89 Mo. 37; Markey v. Railroad, 185 Mo. 348; DeWardener v. Railroad, 1 App. Div. 240; Erickson v. Railroad, 11 N. Y. Mise. 662; Railroad v. Spurvey, 97 111. App. 570; Tulley v. New York & T. S. Co., 10 App. Div. 463; Railroad v. Scott, 21 Tex. Civ. App. 24.
   GANTT, J.

On the 22nd day of March, 1902, the plaintiff commenced this action for damages in the circuit court of Jackson county, Missouri.

After alleging that the defendant was a railroad corporation duly organized under the laws of this State, his petition proceeds to aver: “That on the 15th day of September, 1901, and for several months prior thereto, plaintiff was, and had been, in the defendant’s employ as a switchman in its railroad yards situated in what is known as the west bottoms of Kansas City, Jackson county, Missouri; that plaintiff’s duties were to couple and uncouple cars, switch them about and make them up into trains, and to obey orders and directions of his yard-master and foreman, who were superior in grade and authority to plaintiff; that it became and was the duty of the defendant at such time and place, to use ordinary care to provide plaintiff a reasonably safe place in which to work, to use ordinary care to avoid injuring plaintiff while performing his duties, and that it was also defendant’s duty, acting through plaintiff’s superiors as aforesaid, to take proper1 precaution to prevent injury to plaintiff; that at or about the hour of 8:30 o ’clock p. m., of the 15th of -September, 1901, and in the darkness of the night, plaintiff was working with a switch crew, whose foreman was one G. W. Zibble, and said crew was operating defendant’s engine No. 310, which was in charge of one F. F. "Wood, an engineer; that said defendant at such time and place provided a switchtender, one Edward Gibbony, whose duty it was, under the supervision of said yard-master and foreman, to throw the switches in said yards and see that the same were properly set; that at said time and place there were certain stationary cars standing on what is and was known as track No. 18, which was and is located at a point in said yards where Liberty street and Union avenue, both public streets of Kansas City, would intersect, if prolonged; and that said stationary cars stood about forty or forty-five feet west of the point at which was located a certain ground switch and at the point of said switch both said track No. 18, and also a certain track known as track No. 17, ran into a certain main track; that at said time and place it became and was the duty of plaintiff to couple said stationary cars on to certain other cars at the time being moved backwards attached to the switch engine aforesaid, and plaintiff was standing with his right hand upon the rod of the first of said stationary cars in readiness to make the coupling at the place and in the manner required by his duty, and under the custom and rules of the defendant; that the point at which stationary cars were standing was in close proximity to said track No. 17, so that cars running upon said track No. 17, in a westerly direction, would necessarily come in contact with the corner of the car at which plaintiff was standing; that when said cars were- backed from said main track on to track No. 17, instead of track No. 18, and on account of being backed upon said track No. 17 instead of said track No. 18, the coupling did not meet, but the corners of the cars at which plaintiff was so standing, engrossed in his work as aforesaid, were brought into violent contact with each other and his body was thus caught between said ears, and his right hand, arm and wrist caught between - the corners of said cars and mashed and crushed so that his entire hand, save and except a fragment of the thumb, had necessarily to be amputated; that said injury was occasioned to plaintiff by the negligence, carelessness and want of ordinary care on the part of the defendant, its agents, servants and employees in the following respects, to-wit: That said defendant by and through its agent, servant and employee, said Gribbony, negligently, carelessly and unskillfully threw said switch, permitting the moving cars to run in upon track No. 17 instead of track No. 18.” Other charges of negligence are contained in the petition but all of them except the foregoing were disregarded on the trial of the case and the case was submitted to the jury solely on the question of the negligence of the switchtender, Gribbony, in throwing the switch for track No. 17 instead of track No. 18. The petition further alleged that the said injury to plaintiff has- caused him the most intense pain and suffering, both mental and physical, ever since its occurrence, and will for sometime in the future continue to do so; that at the time of his injury plaintiff was a strong, able-bodied man and was able to earn, as a railroad switchman, ninety dollars per month, but that his earning capacity by said injury has been entirely destroyed; that plaintiff has been permanently deformed and rendered a cripple thereby, and has been deprived of all ability to earn his own livelihood, all to his great damage in the sum of fifteen thousand dollars, for which he prays judgment and costs.

The answer admitted the incorporation of the defendant, and that on or about September 15, 1901, an accident occurred wherein plaintiff was injured, but denied that he received injuries of the character and to the extent in said petition set forth, and denied that plaintiff’s injuries were caused by any negligence or carelessness on the part of the defendant, its servants, agents and employees, and denied each and every other allegation in said petition not expressly admitted to be true. There was also a plea of contributory negligence. Plaintiff filed a reply, which was a general denial of all new matter alleged in the answer.

The cause was tried on the 23rd of June. 1902, and resulted in a verdict for the plaintiff for twelve thousand dollars and costs. In due time the defendant filed its motion for new trial and in arrest of judgment which were heard and overruled, and the defendant excepted and thereupon appealed to this court.

On the part of the plaintiff the evidence tended to prove that the plaintiff was a night switchman of the defendant in its yards at Kansas City, at the time he received the injury complained of. The night yardmaster was Joseph Maroney, and the crew of which plaintiff was a member consisted of Emmet Green, the foreman, George Zibble and C. Mills, switchmen, Wood, engineer, Burnett, fireman, and a switchtender named Gibbony, and the plaintiff. At the time of the accident, Green had gone to lodge, and Zibble had been appointed foreman in his place by Maroney the yard-master, Mills was over at the Union Pacific yards some distance away, Wood and Burnett were on the engine, and so far as the record shows, knew nothing of the facts causing plaintiff’s injury. Gibbony was dead at the time of the trial.

The plaintiff testified that the point at which the accident occurred was about 45 feet from the ground switch connecting the two tracks, No. 17 and 18. Plaintiff testified that the photograph marked £"Exhibit A,” attached to plaintiff’s additional abstract of the record, correctly represented the directions and the yard at the place where he was injured; that the photograph marked ££ Exhibit B ’ ’ represents the same place looking in an opposite direction towards Hickory street and Union avenue; that “Exhibit 0” correctly represents the tracks 17 and 18 and the ground switch and point of accident. These exhibits and photographs will accompany this opinion. He further testified that the crew were switching a long line of ears; one or two cars had been placed on track 18 so that the east end of the one towards the east, which was a coal car, was about 40 to 45 feet from the ground switch, at which point the north rail of track 17 was about a foot and a half or two feet from the north rail of track 18 and the south rails of the respective tracks were thus the same distance apart. The second cut went down on track No. 8 and plaintiff! rode it down and coupled the cars on to a car on that track; then he ran back towards track No. 18 to couple the next cut on to the cars standing on track 18. Plaintiff had been with Zibble when he marked the cars with chalk and knew that this cut which was then being shoved in, was marked for track 18. When the plaintiff reached the stationary car on track 18, he' took hold of the lever with his right hand and held it ready to drop it when the automatic couplings came together. He was then standing facing north with his right hand about a foot or eighteen inches in from the side of the ear. He had his lighted lantern in his left hand and there was nothing to obstruct Gibbony’s view of him. When plaintiff arrived at this point he glanced at the approaching cars, which were then about six feet away from him and then looked towards the coupling that he was trying to make. He supposed that the cars were on track 18 as marked with the chalk, but Gibbony had thrown the switch and they were on the lead of track 17. The cars came together and by reason of being in different leads the approaching car was about two feet to one side, so that the drawheads slipped past each other and each went underneath the other car, and the ends of the cars came together, and plaintiff’s hand was caught by a big bolt on the end of the truss rod which comes through the end of the car, and was mashed against the opposite car. One of the cars was thrown off of the track by the force of the collision and the cars were shoved some sixty to seventy feet to the point of the frog before they were stopped. At the time of the accident, Gibbony was opposite the ground switch forty or forty-five feet away from the plaintiff. It was Gibbony’s duty to see that the switch was thrown. It was also the duty of Gibbony and Zibble to see that the cars did not corner. The switchman making a coupling has to hold the lever and cannot-watch other things, but it is the duty of the switchtender and foreman to watch out. There was no electric light near there. Zibble was about fifteen feet east of Gibbony when the collision occurred and Maroney was farther away, up near Hickory street. The accident occurred about 9:30 o ’clock p. m. Plaintiff was taken to the hospital, where he remained from the time of the accident, September 15, 1901, until the following March, 1902. An attempt was made to save the thumb of the hand, but the leader was so badly mashed and bruised that the skin died, and at the time of the trial all that remained of the hand was the stiff and useless thumb. Plaintiff testified that he suffered great pain and the hand never healed and pained him at all times. He was forty-four years of age and earned ninety dollars per month at the time he was injured. This was in substance the plaintiff’s evidence in chief.

On the part of the defendant, Joseph A. Maroney, the night yard-master, testified he -did not see Phippin from where he was at the time of the accident. He was about thirty yards east of Zibble at the time of the injury to plaintiff. By holding- up a lamp, a man can see along the rail to distinguish the rail for about ten feet. There was a stationary car on track 18, and the next car was marked for track 17. The car that struck Phippin had to -stand awhile after it was kicked on to track 17, bnt was shoved down, a string coupled on and started it moving again. A man standing at the switchstand could see well enough to tell whether a car that was shoved on 18 had been cleared so as to let another pass on 17. On cross-examination Mr. Maroney said that a man in plaintiff’s position coupling a car which was coming from the east looks right north at the coupling that is being made, and that this is the usual and customary way of doing it, and though they call them automatic couplings, they will not all couple automatically, and to insure a coupling, the switchman .takes the lever and holds it up and the crank is there for the switch-man to catch hold of. There, was no light on this ground switch where Gibbony was, and he had told Nibble to act as foreman in place of Green, the regular foreman. It was the duty of the switchtender to line the switches, to see that the cars did not corner, and if they do it is a violation of the rules.

G. "W". Zibble testified that at the time of the plaintiff’s injury he was forty or fifty feet east of the ground switch. The car that struck Mr. Phippin was marked for track 17. Cars corner sometimes, but it can be prevented, provided the switchtender does not throw the switch for some opposite track. These two ears cornered, because the switchtender threw the switch for the wrong track. It was Gibbony’s duty to see that the cars did not corner, and the switchman had to depend on that and did depend on it. He gave the signal to back up, and saw Phippin go in to make the coupling. Gibbony threw the switch. The witness intended that these cars should back up to the car standing' on the track 18 so that it would be coupled on, and he saw Phippin ready to couple on to the stationary car. There was no stationary car standing on track 17, it was clear when he gave the signal, and the switchtender instead of throwing the switch for 18, the track the car was on, tljrew it for track 17, which was empty. Phippin was standing there holding his hand where he had to hold it, and the ears cornered and held him; the cars on 18 went a good ways and one of the cars that cornered was derailed. Gribbony was standing there and he conld see that the car did not clear. This'in substance was the evidence by the eye-witnesses to the accident.

Mr. C. E. Carson was called by defendant as an expert witness, and testified that he was a superintendent of terminals for the Missouri Pacific Railroad, and that he had measured the distance between the rails at a point forty-five feet west of the ground switch, and his recollection was that the distance was two feet five and a half inches, but that he did not charge his memory with it. Six feet farther east the distance was seven inches less. He testified that he had made a test, and that at this point the bodies of two cars would not come together, because of the draft of the drawheads, which would make a space of a foot or so between the bodies of the cars. The cars would have to be one hundred and twenty five feet from the switch point for the cars to come together. He was not there when Mr. Phippin was hurt and did not know how it happened. Was merely testifying as an expert. He stated that cars frequently cornered, and thought that the switchman could distinguish for fifteen to eighteen feet, whether a car was on track 17 or 18, and there was nothing to prevent a switchman from looking at an approaching car when making a coupling.

Mr. Francis Shade, a stenographer, testified with regard to the correctness of a transcript of the plaintiff’s deposition, and Mr. Morrison testified on the same subject in rebuttal. The defendant then read in evidence the following portion of the deposition taken by the defendant before the trial which was as follows: “Q. Could you see the track that you were standing next to? A. No, sir; I could not see the track until I came over on it. Q. When you were on the track how far along conld yon see? A. About from here to that door? Q. How many feet? A. Eight or ten or fifteen. Q. How far could you have seen the rail of the track if you had been looking down the track and close to it? A. I could have seen about four feet, because my light was back here. Q. You mean that you could only see the rails four feet from you? A. Yes, sir; only four feet. The shadow of my lamp was back of me.' ’ The foregoing was practically all the evidence in the case.

At the conclusion of the evidence the court gave the following instruction for the plaintiff:

“1. The jury are instructed that if they believe and find from the evidence, that on September 15,1901, the plaintiff, George L. Phippin, was attempting to couple a certain stationary freight car, to a certain moving car backing towards the same, for the defendant railroad company, and that his right hand and wrist were caught between the corners of said cars and injured, and that the said injury was caused by the negligence and carelessness of the switchtender in throwing the switch for track No. 17, instead of track No. 18, thus causing the corners of the cars at which plaintiff, Phippin, was standing, to collide and come together with force and violence, and that the plaintiff, at the time, was in the exercise of ordinary care himself, then your verdict must be for the plaintiff.”

And the following instructions for the defendant:

“2. The court instructs the jury that when plaintiff entered the employ of the defendant he assumed all the ordinary risks of the employment and it was his duty to exercise reasonable care and diligence in protecting himself from injuries; and if the jury believe from the evidence in the case that plaintiff was an experienced railroad switchman, and could by the exercise of such reasonable care and diligence have ascertained, in time to avoid the accident, that the car that was approaching him from the east was on track No. 17 and the stationary car was on track No. 18, so-that the corners of the two cars would come together, then he is not entitled to recover, and it is your duty as jurors to find a verdict for the defendant. By reasonable care and diligence is meant such care and diligence as an ordinarily prudent and careful man would usually exercise under the same or similar circumstances.
‘ ‘ 3. The court instructs the jury that if you believe, from the evidence in the case that the number of men employed in switching at the time that the accident, occurred were sufficient to handle the cars with safety, by the exerise of reasonable care, then the plaintiff is. not entitled to recover on account of any insufficiency in the number of men employed in that work.
“4. The court instructs the jury that the plaintiff, Phippin, has been a witness in his own behalf in this, case, and the jury are the sole judges of his credibility. All statements made by him, if any, which are against his own interest, must be taken as true, but his statements in his own favor are only to be given such credit, as the jury, under all the facts and circumstances in evidence, deem them entitled to.
‘ ‘ 5. The court instructs the jury that if the physical facts as shown by the evidence in this case are in conflict with the statements of any witness who has. testified in this case, then it is your duty to take into-consideration what is shown by the physical facts and to disregard the statements of witnesses in conflict with such physical facts, if any.
“6. The court instructs the jury that in passing on this case you should take into consideration the facts and circumstances developed by the evidence in the case, and, in arriving at a verdict, you should be governed alone by the evidence and the instructions of the court, which are given for your guidance, and should not suffer yourselves to be in any way influenced by the fact that the plaintiff is an individual and the defendant a railroad company.”

And refused the following instruction numbered one asked by the defendant: “1.' The court instructs the jury that under the pleadings and the evidence in this case the plaintiff is not entitled to recover and your verdict will, therefore, be for the defendant.”

I. The first contention of the defendant in this case for a reversal of the judgment is that there was no substantial evidence tending to show negligence on the part of the defendant, and, therefore, the court should have directed a verdict for the defendant. This insistence is predicated largely upon the claim that there was no substantial evidence in the case tending to show that the car which was thrown on track No. 17 and which cornered and collided with the stationary car on track No. 18 and thereby caused the injury to the plaintiff, was negligently put upon the track No. 17, instead of on track 18. This claim necessarily requires^ a consideration of the testimony on this point. The testimony of the plaintiff and of Zibble who was the acting foreman of plaintiff’s crew that night when switching and making up trains, was to the effect that just prior to the injury to plaintiff, one or more cars were standing stationary on track No. 18 about forty or forty-five feet from the ground switch, and that it was the duty of Gribbony as switchtender of that switch to line the switches, and to see that cars did not corner, and that there were no cars on track 17. The engine and the moving cars were coming from the east. The plaintiff testified that the box car which cornered with the car at which he was standing prepared to couple it to the car coming from the east, was marked in-chalk 18, and that this mark indicated that it should go on track No. 18. Plaintiff testified that he saw Zibble, the foreman, when he marked the cars with chalk, and knew that this cut of cars which.was then being sboved in was marked for track 18. Jnst prior to this he had gone down to track No. 8 with the second cnt, and having coupled the cars on that track, had run back to track 18 to couple the next cut on the cars standing on track 18. Zibble and Maroney, witnesses for the defendant, testified that the car in question was marked for track 17 instead of for track 18, and it is insisted by the defendant that the testimony was so overwhelmingly against the plaintiff in regard to the numbering of these cars that plaintiff’s evidence on this point is not entitled to any consideration. Plaintiff testified that before the accident that night, he had been along a string of cars that were to be switched, looking at the numbers on the cars to see where they went, and seeing to the brakes on them, and if there were any couplings to make; that he was following Zibble, the foreman who was marking the cars. Mr, Zibble was asked who put those figures on the car, and he replied that he did; he was asked where plaintiff was at tbe time he marked the cars and he answered he was along with him down on the track, and when asked whether plaintiff saw him put the figures on the car, he answered, “He was walking along there, I do not know whether he paid any attention to the figures or numbers I was putting on the car or not, I cannot say about that.” On the other hand, Maroney testified that he had marked those cars and that he put the figure 17 on this car. Thus there was a conflict between the defendant’s two witnesses Zibble and Maroney as to who put the marks on the car in question. But we think it is too clear for discussion that in this state of the evidence it was a question for the jury to determine whether this car was marked for track 17 or track 18, and it is not the province of this court to settle that question. That plaintiff understood that the car was coming back on track 18, there would seem to be little ground for controversy. When he came back from track 8 he went to the stationary car on track 18, which stood about forty-five feet from the ground switch at which Gribbony was stationed, and took hold of the lever, which was a foot or eighteen inches from the side of the car, with his right hand and pulled the lever down off of the catch and held it preparatory to making a coupling with the car or train which was being backed up from the east. This conduct on his part would have been entirely useless had he expected the car from the east to lead down on track 17, as it would have been perfectly apparent that he could not couple his car to the car coming from the east on 17, and there were no stationary cars on track 17. Both Maroney and Zibble, witnesses for the defendant, the one the night yard-master, and the other the foreman of this crew with which plaintiff was working, testified that it was Gribbony’s duty as switchtender of that ground switch to line switches and to see that the cars did not comer, that is, to see that all cars were in the clear. Now, while defendant insists that it was not the intention that this car should be pushed west on track 18 and coupled with the stationary ear standing near the ground switch, Mr. Maroney testified in regard .to Gribbony’s opportunity to see that these cars would corner if the box car was switched on track 17, as follows: “Q. Could a man see well enough to tell whether a car that was shoved on track 18 had been cleared so as to let the others pass by on 17, I mean from the switch stand? A. Yes, sir.” Mr. Zibble testified as follows: “ Q. Do you mean to say that you gave the signal for the engineer to move the car onto 18? A. I gave him the signal to back up, supposing that he was going on 18. Q. You supposed he was going on track 18? A. Yes, sir; that was the information that I got from Mr. Maroney when he went by me. Q. Did Mr. Gribbony have any such information? A. He was standing right there, and could see that the car did not clear. Q. Did he have any information except what was shown on the tab? A. That was sufficient.” On reeross-examination on this same subject Zibble testified further: “Q. He could see it? A. Yes, sir, he could surely see it. ’ ’ Zibble and the plaintiff were the only actual eye-witnesses to the accident. Zibble testified that he gave the signal to back up; that it was very dark there, but he saw Phippin, the plaintiff, go in to make the coupling. Gibbony threw the switch; that he, Zibble, intended that these cars should be backed up to this car standing on 18 so that they would be coupled together. Zibble at the time he gave the signal was standing close to Gibbony, and saw Phippin, the plaintiff, ready to couple on the stationary car; that there was no stationary car standing on 17. He testified that the switchtender, Gibbony, instead of throwing the switch for 18, the track'the car was actually on, threw it for 17. He testified that the reason these two cars cornered was that “the switchtender threw the switch for the wrong track, that was all.” Thus there was evidence independent of the numbers on the car which tended to show that it was the duty of .Gibbony to see the cars did not corner, and that from his position at the ground switch Gibbony could see that the cars did not clear, and that if he sent the backing ears on to track 17 it would corner with the stationary car standing only forty-five feet distant on track 18, and seeing the plaintiff' standing there with his lantern, it was negligence on the part of Gibbony to throw the switch for track 17 instead of track 18. In view of this evidence, we cannot agree to the proposition of the learned counsel for the defendant that there was no substantial evidence in the case tending to show that the car in question should have been put on track 18 instead of track 17, nor do we understand from the testimony that Gibbony was bound by his directions to send the car on 17, even if it was numbered 17. The yard-master and the foreman both concurred that it was the duty of the switchtender to so line the switches that the cars would not corner, and there was much substantial evidence to justify the jury in finding that Gibbony from his position could see that the cars did not clear. In other words, that the stationary car on 18, owing to the proximity of the tracks, would necessarily collide with a car sent in on track 17, and if under these circumstances Gibbony sent the cars down on track 17, he was negligent in so doing, and if so the defendant became and is liable to plaintiff'for this negligent act of his fellow-servant under the provisions of section 2873, Revised Statutes 1899, commonly called * ‘ The Fellow Servant’s Act.

II. But it is insisted that even if Gibbony was guilty in switching the moving cars on to track 17 instead of track 18 and thereby causing the cars to corner, the plaintiff was guilty of such contributory negligence that will bar his recovery. It is earnestly argued that as he was an experienced railroad switchman, having been in the railroad business for more than twenty years and half of that time engaged in switching, and was familiar with the tracks in the yards where the accident occurred, and knew the proximity of tracks T7 and 18, and that if a car should he pushed on to track 17 it would corner with a stationary car on track 18, it was his obvious duty to watch the approaching car to see which track the car was on, and that if he had. been looking to see which track the car was on he would have discovered that it was on track 17 in time to have removed his hand from the lever and thus avoided the accident. We are cited by the learned counsel for the defendant to numerous decisions of this court to the effect that where the established physical facts and common observation and experience conflict with the testimony of a witness, his testimony must yield and cannot be accepted as the basis of a verdict or judgment. [Hayden v. Railroad, 124 Mo. 566; Kelsey v. Railroad, 129 Mo. 362; Huggart v. Railroad, 134 Mo. 679; Payne v. Railroad, 136 Mo. 583; Petty v. Railroad, 179 Mo. 666.]

That these cases announce the law of this State, there can no longer he any doubt. Whether a given case falls within the rule therein announced must be determined by the facts in each case. The evidence on the part of the plaintiff, corroborated by that of the defendant, established quite conclusively that just prior to the accident plaintiff was busily engaged at his work in switching and coupling cars on track No. 8, and then hurriedly ran from track No. 8 to the stationary car on track 18 and took his position at the east end of said car facing north with his right hand holding the lever as his duty required, and pulled down the lever from the catch and held it waiting for the drawheads to come together. He testified he then looked east and the west end of the backing train appeared to be within about six feet from him moving at a pretty good gait; he held his lamp in his left hand, it was very dark at the time, and there was no light of any kind except the switchmen’s lamps. Having seen the car very close to him and supposing it was on track 18, he then directed his eyes to the coupling. He testified that under these circumstances it. was his business to look right at the lever with his hand in position to make the coupling. Mr. Maroney, the yard-master, corroborated the plaintiff as to the propriety of the position he had taken at this time. The plaintiff testified that he did not look down at the rails at this time, but looked at the approaching car and supposed it was on track 18. It is insisted by the defendant that had plaintiff looked at the tracks he could not have failed to have discovered that it was on track 17, but in the light of all the evidence, when the darkness of the night, the proximity of the tracks and the character of the approaching car are taken into consideration, we do not think it can be conclusively asserted that if the plaintiff had looked at the tracks he would have been able to have determined upon which track the approaching car was. Bnt it is said, that he had his lamp with him and that had he shifted his lamp into his other hand he conld have thrown his light far enough to have enabled him to do so in time to have saved himself from the injury. On this point Maroney testified that one in the position of the plaintiff in the darkness of that night could not have distinguished the rail over ten feet distant; that one could see ten feet by holding his lamp up, but in measuring the duty of the plaintiff at this time regard must be had to the duty at that moment devolving upon him. The conditions surrounding him required prompt attention, while it might have been a physical possibility for him to have discovered that the approaching car was on track 17 instead of 18 it must be remembered that with a car only six feet away, and the duty of watching the lever and the coupling to make, by the time he had lifted his lamp and brought it around from the left side of his body into a position to make the examination that Maroney would seem to show was necessary, the collision would have happened. But this is not all: as an experienced switchman he knew it was the duty of the switchtender to so line the switches that the cars would not corner and collide, and plaintiff had the right to presume that the switchtender was attending to his duties, and would not send a car down on track 17 when it would inevitably corner with the stationary car on track 18. In view of all the evidence and keeping in mind the perilous nature of the plaintiff’s employment and that his duty required his whole attention, we think that whether he was negligent was a question of fact for the jury, and the circuit court properly submitted that question to the jury. The plaintiff was where his duties required him to be, that he had assumed a proper position to make the coupling there can be no doubt, the work before him required promptness, and but for the negligent action of the switch-tender, lie would not have been injured. Under like circumstances this court has, on numerous occasions, held that whether he was guilty of contributory negligence was a question of fact for the jury. [Cambron v. Railroad, 165 Mo. 543; Hollenbeck v. Railroad, 141 Mo. 110; Young v. Waters-Pierce Oil Co., 185 Mo. 668; Barry v. Railroad, 98 Mo. 70; Hamilton v. Rich Hill Mining Co., 108 Mo. 364; Wright v. Kansas City, 187 Mo. 678.]

III. But again, defendant asserts that the plaintiff assumed the risk of the injuries he received and therefore cannot recover. This contention seems to be based largely upon the fact that the witnesses testified that it frequently happened in railroading that cars did corner on tracks like these. As to this, in the first place, it may be said that the circumstances in which it was said cars frequently cornered were widely different from the facts in this case. Mr. Carson, who testified as an expert for the defendant, was speaking of cases in which cars were kicked on different tracks, and owing to the fact of the brake-beam adhering close to a wheel one car would not run as rapidly as another, and might stop before reaching a proper point, and the next car on another track would corner with the car that stopped, and sometimes one car would run faster than another and thus corner with it while both were running, but in this case the evidence shows that the stationary car on track 18 had been standing some time before plaintiff was injured.

Mr. Maroney, the yard-master, testified that it was the duty of the switch-tender to line switches and see that they did not corner, and if they did corner in the circumstances like those in evidence in this case, it was a violation of the rules.

Zibble testified that it was the duty of the switch-tender to see that the cars did not corner, and the switchman had to depend on that and did depend on it. It did not appear from the evidence that the cornering of cars under circumstances such as these was a frequent occurrence, hut if such had been the case, it was a violation of the duty which the defendant through its switch-tender, Gibbony, owed to plaintiff. The plaintiff did not assume the risk of the negligence of the defendant acting through its switch-tender. In the recent case of Curtis v. McNair, 173 Mo. l. c. 280, this court summed up the law on this point, saying: “It is the duty of the master to exercise reasonable care commensurate with the nature of the business to protect his servant from thhe hazards incident to it. [Williams v. Railroad, 119 Mo. 316; Rodney v. Railroad, 127 Mo. 676; Herdler v. Buck’s S. & R. Co., 136 Mo. 3.] This duty the law imposes on the master and will not allow him to cast it off. It is contrary to public policy to allow the master to relieve himself by contract from liability for his own negligence. What the law forbids to be done by express contract it will not assist to be done by implying a contract. A risk which the law on the ground of public policy will not allow the servant to assume it will not imply from his conduct that he has assumed. [Blanton v. Dold, 109 Mo. 64; Settle v. Railroad, 127 Mo. 336; Pauck v. St. L. D. B. Co., 159 Mo. 467; Wendler v. People’s House Furn. Co., 165 Mo. 527.] The servant never assumes the risk of the master’s negligence.”

This point must likewise be ruled against the defendant.

IV. For the plaintiff the court gave the following instruction: “The jury are instructed that if they believe and find from the evidence that on September 15,1901, the plaintiff, George L. Phippin, was attempting to couple a certain stationary freight car, to a certain moving car backing toward the same, for the defendant railroad company, and his right hand and wrist were caught between the corners of said cars and injured, and that the said injury was caused by the negligence and carelessness of the switch-tender, in throwing the switch for track No. 17 instead of track No. 18, thus causing the corners of the car at which plaintiff, Phippin, was standing, to collide and come together with force and violence, and that the plaintiff at the time was in the exercise of ordinary care himself, then your verdict must he for the plaintiff.”

The defendant urges that this instruction was erroneous in that it assumes that throwing the switch for track 17 was a negligent and careless act. We do not think the instruction is obnoxious to this criticism. We think it plainly required the jury to find that the injury was caused by the negligence and carelessness of the switch-tender. An instruction in all respects similar to this was sustained in Dammann v. St. Louis, 152 Mo. 186; see, also, Geary v. Railroad, 138 Mo. 251; State v. Grayor, 89 Mo. 605; O’Connell v. Railroad, 106 Mo. 482.

Y. Finally it is urged that the verdict is excessive and obviously the result of passion, prejudice and undue sympathy. On this point the evidence shows that plaintiff was an experienced hrakeman. By the accident his right hand was crushed, so that it had to he cut away, leaving nothing hut the thumb, which was stiff and a useless deformity. He was confined to the hospital for a period of six months, and underwent intense pain and suffering, and at the time of the trial parts of the stump were still raw and unhealed; he had not been able to do any work whatever since the injury and was permanently disabled from ever afterwards following his vocation.

Prior to and at the time of his injury he was receiving $90 per month from the defendant. Obviously it was the duty of the jury in the first place to consider and assess the amount of damages which plaintiff suffered by the loss of his right hand and the pain and suffering which he had endured. And while it is true that this court will scan the evidence to ascertain whether a verdict is the result of passion or prejudice, and will set it aside entirely or will compel a remittitur where the amount is utterly disproportionate to the conceded injuries in the case, in each case it must depend upon the facts peculiar to it. Each case presents its own merits or demerits, and little assistance can be received from what has been done in other cases. A long list of cases has been cited by the respective counsel in this case. In Dougherty v. Railroad, 97 Mo. 647, the plaintiff was a manager of a telegraph company, his salary was $144 per month, he lost his left arm in consequence of a violent jerk of a street car on which he was riding. During his illness his employers continued him his salary. The evidence tended to show that his usefulness as a telegraph operator was greatly impaired, to the extent perhaps of one-half. The verdict was for $12,000. This court quoted with approval from the opinion in Waldhier v. Railroad, 87 Mo. 37, as follows: “It is a matter of much difficulty, in such cases as this, to tell when the verdict is or is not excessive. . . . The amount of damages must be left largely to the reasonable discretion of the jury.” In that case, where the plaintiff had lost both legs, a verdict of $25,000 after a remittitur for $5,000 and the accrued interest, was suffered to stand. In the case of Porter v. Railroad, 71 Mo. 66, where the injuries to plaintiff resulted in the amputation of one leg and two toes of the other foot, a verdict for $10,000 was not disturbed. In Chitty v. Railroad, 166 Mo. 443, a verdict for $15,000 was reduced to $10,000 and affirmed, where the injury was a compound fracture of the leg, which had never fully healed, but plaintiff could put cotton in his shoe and “walk by the aid of a stick, without any particular trouble.”

In Hollenbeck v. Railroad, 141 Mo. 113, one of the plaintiff’s legs was mashed and had to be amputated three times. The verdict was for $10,000 and was permitted to stand. "When the nature and character of plaintiff’s vocation in life is considered, the loss of his right hand was tantamount to a permanent deprivation of the means of earning a livelihood. He was forty-four years of age, and he was left in a deplorable condition for the future. When compared with the injuries for which others have been allowed $10,000, we think there is nothing in-the verdict which would justify us in holding that it was the result of passion or prejudice. We have given this record a careful consideration and in our opinion the judgment should be and is affirmed.

All concur.

ON MOTION POR REHEARING.

PER CURIAM:

A motion for rehearing was filed in this cause and leave obtained to file a brief in support thereof, to which plaintiff has replied. Every proposition except one was ably argued and briefed on the original hearing. As to those we see no reason to change our views except as hereinafter stated.

One new point is urged in the brief and that is as to the construction of the Fellow-Servant Act of 1897. A careful reading of the motion for rehearing will show that no such proposition was in the mind of the able and distinguished counsel who drew it. Moreover, no stress was ever made on this point, either in the circuit court or this court, until weeks after our- decision had been promulgated. To recognize the practice of injecting into a case for the first time after a final judgment and opinion by the Supreme Court a new proposition, would be subversive to all our rules of practice and directly in the teeth of our rules. For this reason we must and do decline to enter, upon the discussion of the proposition as to the act of 1897.

After a careful reconsideration of the defendant’s insistence that the verdict is excessive, it appears to us that the verdict is too large. While we recognize that it is the duty of the jury to find the amount of damages, it is now the accepted law of this courft that a remittitur may be required where, in the opinion of this court, the verdict is excessive. Accordingly, our opinion is modified and the judgment affirming the judgment of the circuit court is set aside, and it is ordered and adjudged that the judgment of the circuit court of Jackson county in this cause be reversed and the cause remanded on the ground that the verdict and judgment is excessive, unless within twenty days from this date the plaintiff shall remit three thousand dollars of said verdict and judgment as of the date of the rendition thereof, to-wit, June 23, 1902, but if plaintiff shall file such remittitur in the office of the clerk of this court within said time, then the judgment for the balance, to-wit, $9,000, and interest at the rate of six per cent from June 23, 1902, is affirmed.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    MARY A. BROOKS et al., Appellants, v. GAFFIN.
    Division Two,
    May 22, 1906.
    MINING LEASE: Conditions Broken: Ejectment. Ejectment will lie to recover land that has been leased for mining purposes for failure of the lessee to comply with the conditions of the lease, where the lease contains a provision for forfeiture for breach of an essential condition of the lease, whether the right of re-entry is expressly reserved in the lease or not. [Following and approving Brooks v. Gaffin. 192 Mo. 228.]
    Appeal from Lafayette Circuit Court.—No». Samuel Davis, Judge.
    Reversed and remanded (with directions).

      Alexander Graves for appellants.
    (1)" The lease contains a clause of forfeiture for the failure to perform any of its conditions and the ten days notice of forfeiture was served on Ga.ffin by tbe sheriff. (2) Plaintiffs’ instructions should have been ■given, and the judgment should have been for plaintiffs. Kirk v. Mattier, 140 Mo. 35; Ruddiek v. Railroad, 116 Mo. 34; Avery v. Railroad, 113 Mo. 561; Brooks v. Gaffin, 192 Mo. 228; Gray v. Blanchard, 25 Mass. 289; Taylor v. Brice, 7 Ind. App. 553; Brink v. Steadman, 70 111. 243; Village of Morgan Park v. Graham, 136 111. 524; Tyler on Ejectment and Adverse Possession, p. 282. (3) Respondent has broken the conditions.
   FOX, J.

This is an action of ejectment to recover certain coal lands which had been leased to defendant by Alexander Brooks in his lifetime, and the cause is now here upon appeál from a judgment in the Lafayette Circuit Court. The cause of action is thus stated in the petition of plaintiff filed in the circuit court of Lafayette county:

“Plaintiff avers that the said plaintiffs, Sydney W. Brooks, Olellia John Brooks and Mary E. Brooks, .are infants, being under the age of twenty-one years, and that they sue by their lawfully appointed and duly qualified guardian of their person and curator of their estate, Mary A. Brooks, who is an adult, and also sues in her own right as co-plaintiff.
“Plaintiffs aver that the said Mary A.» Brooks is the widow and the other plaintiffs are the children and only heirs at law of Alexander Brooks, deceased, who departed this life on or about the--day of February, 1901, seized and possessed of the following described premises, situate in the county aforesaid, to-wit:
“The northwest quarter of the northeast quarter of section one, township fifty, range twenty-seven, that part of the west half of the southwest quarter of section thirty-six, township fifty-one, range twenty-seven, that lies south of the right of way of the Missouri Pacific Railway Company, except sixty-six feet off of the west side of the southwest quarter of the southwest quarter of said section thirty-six, and ten acres off of the west side of the east half of the southwest quarter of said section thirty-six, and the west side of the northeast quarter of the northwest quarter of said section one, except one-half acre off the south end of said ten-acre tract, said strip being made by a line beginning at a point on the south line of the said railway right of way and running south parallel with the section line to the south line of said northeast quarter of the northwest quarter of said section one.
“Plaintiffs aver that upon the death of said Alexander Brooks the title in fee and right of possession of said property descended to and vested in said plaintiffs.
“Plaintiffs aver that on the 8th day of January, 1903, they were lawfully entitled to the possession of. the premises above described and that being so entitled to the possession of the same the defendant afterward, on the 9th day of January, 1903, entered into such premises and unlawfully withholds from plaintiffs the possession thereof, to their damage in the sum of- one hundred dollars. Plaintiffs further aver that the monthly value of rents and profits of said premises is fifty dollars.
“Plaintiffs further aver that said defendant has committed waste upon said premises on said 9th day of January, 1903, and on- sundry and divers other days by wrongfully and without leave entering on said premises and digging, excavating and carrying away the coal thereunder, to the value of two hundred and fifty dollars, to the damage of plaintiffs in the sum of two hundred and fifty dollars.
“Wherefore, plantiffs demand judgment for the recovery of said premises and one hundred dollars damages for unlawfully withholding same from plaintiffs, and the further sum of two hundred and fifty dollars for the said waste committed as aforesaid, and fifty dollars for monthly rents and profits from the rendition of of judgment until the posssession of the premises is delivered to plaintiffs and for all other and further general relief.”

The answer was a general denial. Upon the trial the facts are practically undisputed.

Mary A. Brooks is the widow of Alexander Brooks and her co-plaintiffs are his children and heirs at law. The legal title to the land involved in this controversy was in Alexander Brooks, and upon his death descended to the plaintiffs in this cause. Prior to the death of Alexander Brooks he executed a mining lease to the defendant. This lease was introduced in evidence. It can serve no useful purpose to reproduce such lease in full; but it is sufficient to indicate substantially some of the essential clauses. It contained the following express clause regarding the forfeiture. It provided: “On the non-performance of or non-compliance with any of the terms or conditions of this agreement on the part of the second party [Otho M. Gaffin] this lease shall be forfeited at the option of the party of the first part, who shall be entitled to re-enter and take possession of the premises on ten days written notice to that effect to said second party, his assigns, or legal representatives. The second party [Otho M. Gaffin] for himself, assigns and legal representatives agrees to surrender the peaceful and full possession of the premises on the termination, expiration or forfeiture of this lease, without further notice or demand than expressed in this agreement.”

In substance the following conditions were embraced in said lease:

“First: The condition whereby he agreed in good faith and with all proper expedition to mine and remove the coal from said premises.
“Second: The condition for the first two years of this lease to mine and remove sufficient coal at least to keep the face of mining on the above premises even with the face of coal or second party on the adjoining land now being mined by him.
“Third: The condition and that during the remaining years of said lease he will mine and remove at least 16,000 bushels per month from. September 1 of each year to April 1 of the following year, and at least one-fourth that amount during the other months of the year, and in default of mining such quantities, he will pay for at least that number of bushels at each monthly pay day.
“Fourth: The condition to make settlements on the twentieth day .of each month of all coal mined to the first of such month and unpaid for.
‘ ‘ Fifth: The condition to have the survey made of said mines twice each year at his own expense and exhibit such survey to said first party, so as to show how the face of coal is progressing on his land.”

We have carefully analyzed the evidence as disclosed by the record and without undertaking to further detail it, it is sufficient to say that it is not seriously contended that the evidence failed to- establish that some one or more of the conditions embraced in the mining lease hereinbefore pointed out, were broken and not performed in accordance with the terms of said lease. The record discloses ample and sufficient evidence to have fully warranted the court in finding that the conditions of such lease had not been complied with. The notice required under the provisions of the lease, in order to entitle the party of the first part to re-enter and take possession of the leased .premises, was given and served on the defendant December 20, 1902.

At the close of the evidence plaintiffs tendered numerous instructions and requested the court to so declare the law to the court, sitting as a jury. We deem it unnecessary to burden this opinion with a reproduction of the instructions; it is sufficient to say that some of them at least declared the law in such terms as rendered them in harmony with the rules of law announced in the case decided by Division No. 1 of this court (which will be referred to in the course of the opinion) between the same parties and involving identically the same legal propositions. All of the instructions requested by plaintiffs were refused and the cause being submitted to the court, judgment was rendered for the defendant. Plaintiffs’ motion for new trial being denied, this appeal was prosecuted to this court and the cause is now here for review.

OPINION.

An examination of the record in this cause makes it apparent that the main legal propositions here presented are about the same as those in Brooks v. Gaffin, 192 Mo. 228, recently decided hy the other division of this court. That case was between the same parties, and while there were other legal questions in that case not presented in this, yet those involved in this case were embraced in that proceeding, and fully discussed and a final conclusion announced upon them.

The main subject of the controversy in these two cases was in respect to a mining lease, both leases containing similar conditions and clauses, providing for forfeiture upon failure to comply with such conditions. In the case cited, which was decided in Division No. 1 of this court, the answer set up new matter in the nature of an equitable defense to plaintiffs ’ action for the recovery of the possession of the premises. Not so in the case at bar; the answer was simply a plain general denial. The main proposition upon which the decision in the former case turned, was whether or not the action of ejectment would lie for the breach of an essential condition contained in the mining lease. That is the vital question presented for consideration in this case. That proposition was fully covered in Brooks v. Gaffin, supra. Responding to the contention of defendant in the case just cited the court, speaking through Marshall, J.,

said: “Whatever may be the rule in other States, and whatever expressions may be found in the earlier eases, which seem to bear out the idea that ejectment will not lie for the breach of a condition subsequent, the later decisions in this State fully sustain the doctrine that, where the deed contains a provision for forfeiture for a breach of an essential condition of the deed, ejectment will lie for the possession of the premises. The earlier cases were made to depend largely upon the question whether or not the right of re-entry was expressly reserved, but the later eases in this State hold to the rule that a right of re-entry need not be expressly reserved, but such a right is a necessary incident to the condition, and if the condition is broken the right of possession immediately arises. [Ruddick v. Railroad, 116 Mo. loc. cit. 31, 34; Kirk v. Mattier, 140 Mo. loc. cit. 34.]’’ It was further stated during the course of the opinion that “parties have a legal right tp make their own contracts and, so long as they violate no inflexible rule of law, courts must give effect to them, and cannot relieve either party from the effects and consequences of his own contract.”

That case fully reviews the authorities applicable to the proposition and then takes up the Kirk case, 140 Mo. 34, which involved at least one of the most essential features of the case at bar, that is, as to whether or not an action of ejectment would lie to recover land that had been leased for mining purposes under a forfeiture of the lease because of the failure of the lessee to comply with the conditions of the lease, and fully approved of the rule announced in that case that ejectment would lie and was the proper remedy.'

The tidal court, in the case between these same parties, which was passed upon by the other division of this court, rendered judgment as it did in this case, for the defendant. The judgment in that case was reversed with directions to enter judgment for the plaintiff.

In view of the conclusions reached in the case decided by Division No. 1, herein referred to, we see no necessity for a repetition of the reasons assigned in support of the rules of law announced applicable to the subject, wbicb was before the court in that proceeding, and is involved in the case now in hand. It is sufficient to say that we approve the conclusions reached by the other division of this court in the case heretofore cited between these parties, and that is decisive of the legal propositions involved in this case.

The judgment of the trial court should be reversed and the cause remanded with directions to enter judgment for the plaintiff, and unless damages for the detention of the premises are waived, to ascertain the amount of such damages and enter judgment in favor of plaintiff therefor, and it is so ordered.

All concur.


author: BURGESS, P. J.

text:
    CHARLES GREEN REAL ESTATE COMPANY, Appellant, v. ST. LOUIS MUTUAL HOUSE BUILDING COMPANY NO. 3 et al.
    Division Two,
    May 22, 1906.
    1. EVIDENCE: Competency of Witness: Deed of Trust: Agreement With Deceased President of Corporation. A member of the company which was the mortgagor in a deed of trust is not competent to testify, in a suit to set aside a foreclosure sale to a third party, to an oral agreement between him and the deceased president of the company which was the mortgagee, to the effect that the mortgage company, or the president himself on its behalf, would bid in the property at its sale under the deed of trust and hold it so that the mortgagor might redeem it.
    2. TRUSTEE’S SALE: Fairness. The trustee must conduct the sale with absolute fairness, and according to the terms of the deed of trust, and for the best advantage of both the debtor and the owner of the debt alike.

      3. -: -: Cash. Where the deed of trust provides that the property shall he sold for cash, nothing less than a substantial compliance with the agreement will suffice. But where the sale was free from fraud and collusion and no one was injured by reason of the failure of the purchaser to pay all the purchase money at the time or upon the day of sale, the fact that the trustee announced in advance that $500 would have to be paid by the bidder at the time'the property was knocked off to him, and the bidder paid $500 then, and the balance ($6,500) several days later when the deed was made, does not make it a sale upon credit, but the sale was a substantial compliance with the deed of trust.
    Appeal from St. Louis City Circuit Court.—Eon. Jno. A. Blevins, Judge.
    Affirmed.

      Kinealy & Kinealy for appellant.
    (1) The exclusion of Green’s testimony was error. Clark v. Thias, 173 Mo. 628; 30 Am. and Eng. Ency.. Law (2 Ed.), 1046. (2) The exclusion of Green’s testimony injured plaintiff. Cole Co. v. Madden, 91 Mo. 585. (3) The arrangement made by the trustee with purchasers who had no interest in the proceedings save to speculate on a good bargain ought to cause a reversal of the judgment. Cassidy v. Wallace, 102 Mo. 581. (4) The sale ought not be upheld, but should be annulled because of the course pursued by the trustee in selling on credit. 2 Jones on Mortgages (6 Ed.), sec. 1868; Coler v. Barth, 24 Col. 31; Scott v. Lumber Co., 67 Cal. 71; Snyder v. Railroad, 131 Mo. 566; Mead v. McLaughlin, 42 Mo. 203. (5) Defendants Maginn and Labsap are not innocent purchasers. 14 Am. and Eng. Ency. Law (2 Ed.), 289. (6) The purchaser is charged with notice of every requirement contained in the mortgage as to terms of sale. 2 Jones on Mortages (6 Ed.), sec. 1868.

      F. A. Wislizenus, J. P. Maginn and S. Labsap for respondents.
    (1) Mere inadequacy of price, unaccompanied by fraud or unfair dealing, is not a sufficient ground for setting aside a sale under a mortgage or a deed of trust. Keith v. Browning, 139 Mo. 190; Hardwicke v. Hamilton, 121 Mo. 465; Phillips v. Stewart, 59 Mo. 491; Railroad v. Brown, 43 Mo. 294; Maloney v. Webb, 112 Mo. 575; Harlon v. Nation, 126 Mo. 97; Markwell v. Markwell, 157 Mo. 326. (2) Agreement by beneficiary to bid the land in at the trustee’s sale and permit redemption in a few days thereafter, where no consideration for the agreement is mentioned in the petition, and none proved and no fraud is shown, is not sufficient ground to support a suit to set aside a sale under deed of trust. Parketon v. Schlueter, 145 Mo. 55. (3) Green’s possible evidence as to his alleged conversations and oral agreements with Simmons, as former president of the House Building Company and managing head of the trustees in liquidation of said company, that such trustees, or Simmons himself, on their behalf, would bid in the property at the sale under the deed of trust, was properly excluded by the trial judge, Simmons being dead. Sec. 4652, R. S. 1899; Williams v. Edwards, 94 Mo. 452; Butts v. Phelps, 79 Mo. 302; Brim v. Fleming, 135 Mo. 606; Hollinan v. Lange, 143 Mo. 106; McCormick H. M. Co. v. Heath, 65 Mo. App. 461; Aultmann v. Adams, 35 Mo. App. 503; Clark v. Thias, 173 Mo. 645; Banking House v. Rood, 132 Mo. 256; Robertson v. Reed, 38 Mo. App. 32; Baker v. Reed, 162 Mo. 355; Patton v. Fox, 169 Mo. 107; Davis v. Wood, 161 Mo. 29. (4) Green’s testimony as to such alleged oral conversations and agreements was also properly excluded, because there was no evidence offered tending to show that Simmons had any authority on behalf of the trustees of the House Building Company to enter into any such alleged agreement to hid in the property. The former directors were, under section 976, E. S. 1899, settling up the affairs of a dissolved corporation, under the resolution of its hoard of directors of November 30, 1900, the charter having expired by limitation prior thereto. 1 Greenleaf on Evidence, sec. 114; Williams v. Edwards, 94 Mo. 451. (5) Moreover, there was no evidence whatever tending to show any knowledge or notice, prior to their purchase of the property,- on the part of Maginn or Labsap that such alleged oral agreements had been made between Simmons and Green. (6) The sale by the trustee was for cash; it is usual and proper to demand a sufficient deposit, and allow a reasonable time to the purchaser to complete payment. Davis v. Hess, 103 Mo. 31; 2 Jones on Mortgages (5 Ed.), sec. 1866; Jones v. Moore, 42 Mo. 421; Goode v. Comfort, 39 Mo. 326. (7) Plaintiff has shifted completely its theory, from those of the petitions filed, successively, by it in the lower court, and on which, that court heard the evidence. There was no allegation of any misconduct whatever by the trustee or by the purchasers, at the sale; none of any failure of the trustee to comply, in making the sale, with the provisions of the deed of trust; there was no evidence offered at the trial of any alleged agreement of any kind between the trustee and the purchasers, Maginn and Labsap, all of whom were present at the time, and two of whom testified, to the effect that the trustee would sell to them on credit; nor is there any evidence in the record to that effect. Dnnnigan v. Green, 165 Mo. 113; Huling v. Stone Co., 87 Mo. App. 349; Hall v. Goodnight, 138 Mo. 576; Minton v. Steele, 125 Mo. 181; Bray v. Seligman, 75 Mo. 31; Harper v. Morse, 114 Mo. 317.
   BURGESS, P. J.

is a suit in equity, the purpose of which is to have set aside a sale, under a deed of trust, of certain real estate in the city of St. Louis. Charles Green was the owner of the property. On the 3rd day of August, 1896, he and his wife executed a deed of trust on said property to defendant Frederick A. Wislizenus, trustee, to secure the payment of a bond, therein described, for $12,083.96, with interest, for money borrowed by them from the defendant, the St. Louis Mutual House Building Co. No. 3, which deed of trust contained a provision directing a public sale of the property, by the trustee, to the highest bidder for cash, on twenty days ’ public notice by advertisement in a St. Louis newspaper, giving the time, place and terms of sale, in case of default in the payment of the principal or interest upon said bond, and upon such sale to execute a deed in fee simple to the property sold to the purchaser, the proceeds to be applied to the payment of costs and expenses, and then to the payment of the amount of the principal debt, with all interest in arrear, the remainder, if any, to be paid to said Green.

At said sale the trustee announced that he would require the purchaser to pay the sum of $500 at the time of the sale. Sigmund Labsap, who was the highest and best bidder, became the purchaser of the property for the sum of $8,025 cash, and the trustee executed a deed, dated May 24, 1901, conveying said property to said Labsap, which deed was acknowledged before a notary public on June 6, 1901, and recorded in the recorder’s office in St. Louis on June 8, 1901.

The evidence showed that Sigmund Labsap and James P. Maginn bought the said property jointly for their own account solely. Labsap subsequently, on June 20, 1901, conveyed an undivided one-half interest to Maginn, and paid for it out of their own funds; Labsap having borrowed on his note, secured by deed of trust on the said property, from the St. Louis Union Trust Co., the sum of $6,500, and said Labsap and Maginn obtained possession of said property about December, 1902; made repairs costing $800; paid taxes due on it for years 1901 and 1902, rented it for $87.50 per month in April, 1903.

On July 8, 1901 (forty-six days after the sale), plaintiff filed a petition in the St. Lonis Circuit Court against St. Louis House Building Company, which except as to certain parties defendant is substantially identical with the first petition filed in the case at bar.

This action of July 8,1901, was pending until April 10, 1902, on which date the plaintiff voluntarily dismissed the same. Mr. Simmons, a defendant therein, having died on September 16, 1901, after service of process on him, his executors, Amos M. Thayer and Edgar L. Taylor, appeared and answered, filing a general denial on December 2,1901. The other defendants also filed general denials. It was the petition in this cause, and the entries as to process and pleadings therein which were first offered in evidence by plaintiff on April 18, 1903, when the second suit brought April 10; 1902, came on for trial.

On April 10,1902, plaintiff brought the present action. In this first petition, plaintiff alleges that the conversation and agreements between Charles Green, on behalf of plaintiff, and Samuel Simmons, were to the effect that Simmons announced the liquidation of the Building Company and the calling in of its loans including the Green loan, but that Simmons .individually agreed to procure for plaintiff a new loan for $10,000 on the security of the same property, which would fully pay off all owing on said bond and all taxes and assessments levied on said property to the Building Company; that Simmons on various pretexts delayed making said new loan from time to time, and finally announced, in 1901, his inability to make said loan, on account of the said company’s liquidation and would be compelled to sell said real estate under the provisions of the said deed of trust; that Green claimed such a sale was a breach of the contract between Simmons (individually) and plaintiff, and threatened steps to prevent such sale; that Simmons then, to deceive plaintiff and Green, throw them off of their guard, and retain this property for himself, at an inadequate price, told Green that he need not take any steps for the plaintiff’s protection against the consequences of the sale, because he, Simmons, would see that said real estate would be purchased at said sale by the Building Company No. 3, holder of said bond, and that plaintiff would be permitted thereupon to file the bond provided for in section 4343, Revised Statutes 1899, and obtain a year’s time for the purpose of redeeming from said sale by making a new loan and paying off in full the Building Company’s demand; that Green relied on the promise of Simmons, and thereupon and pursuant to such arrangement the trustee Wislizenus advertised the property; the sale was had; Mr. Labsap was declared the purchaser ; that Labsap, in bidding off the property, acted wholly under the instructions of Simmons; did not intend to become, and was not in fact, the actual purchaser; and Wislizenus, the trustee, did not intend to sell it to him; that Labsap paid no money, on said sale, as purchaser, and had no money to make such purchase; that about a week after the sale plaintiff ascertained for the first time that the said Simmons claimed to be the owner of said property; that Labsap was a mere nominal purchaser holding the title for the secret use of Simmons, or of the Building Company, and had paid nothing at said sale; that Labsap holds said title, for either Simmons himself or for said Building Company, plaintiff does not know which.

Plaintiff dismissed on March 30,1903, as to the executors and devisees and legatees of Simmons.

The joint answer filed April 4, 1903, of defendants Maginn and Labsap, denied all the allegations of the petition, except as thereinafter admitted; set up the expiration of the corporate existence of the Building’ Company, prior to the suit, and named the defendants mentioned in the petition as surviving trustees of said corporation, winding up its affairs; stated their purchase of the property at the sale from Wislizenus, trustee; their payment, in cash, to him of the price; his conveyance to Labsap, and tbe latter’s conveyance to Maginn of a one-half interest; they denied all knowledge of the matters, conversations and agreements alleged in the petition as having occurred between plaintiff and Samuel Simmons, either as an individual or as president, trustee, or agent of the Building Company; averred that they were the highest bidders at the sale, and purchased thereat for a valuable consideration, in good faith, and without any notice whatever of any equity or claim of any kind belonging to plaintiff growing out of any of the alleged agreements in the petition; that on June 8,1901, they paid to the collector of taxes the taxes on said property, levied thereon, for state, school and city taxes, for the years 1898,1899 and 1900, aggregating about $730, and also all the taxes for 1901 and 1902; they averred that by deed dated June 6,1901, duly recorded on June 8, 1901, Labsap, being the legal owner of the property, conveyed to the St. Louis Trust Company said property to secure his negotiable note for $6,500, payable to Francis K. Ryan, and received therefor $6,500 in cash from him; that neither said Trust Company nor said Ryan had any knowledge or notice of the matters alleged in plaintiff’s petition as grounds for setting aside said sale. They aver that plaintiff has been guilty of laches in permitting a delay of more than ten months before bringing its present action.

On April 9, 1903, all the other defendants filed their answer alleging the Building Company to have been a Missouri business corporation, not a building and loan association; that its charter expired by limitation prior to November, 1900; that said defendants, except Wislizenus, became trustees for winding up its affairs. They deny specifically all the allegations of the petition as to the alleged promise by them, their company or any one on their behalf, to make a loan to plaintiff for any purpose; deny that Q-reen or plaintiff agreed with their company or them for such new loan, and, in short, deny specifically all the allegations of the petition as to the agreements, conversations and. conduct, in regard to the sale under the deed of trust, alleged to have occurred between plaintiff and the Building Company. They aver the purchase at the sale by Labsap, the payment by him of $500' of the purchase money and the receipts by them and credit of the balance thereof, as trustees of the Building Company, on the bond of Green; they deny that Labsap was a nominal purchaser; that at any time he held title for the use of the Building Company. They deny that the property was worth $24,000.

On April 18, 1903, the cause was tried and on the same day the court rendered a judgment, finding the issues in favor of the defendants, dismissing plaintiff’s petition, and adjudging costs to the defendants.

The various conveyances referred to were offered in evidence. It was admitted that Samuel Simmons had been president of the Building Company from its organization to the date of its last meeting, and that he was now dead. The charter of the St. Louis Mutual House Building Company was put in evidence, dated February 22, 1873, to continue for twenty years; also an entry from that company’s minutes of November 30, 1900, reciting the expiration by limitation of the company’s charter and a resolution of the president and board of directors, organizing themselves as trustees, under the provision of section 976, Revised Statutes 1899, to wind up the affairs of said corporation.

Plaintiff offered Mr. Green as a witness, and questioned him as to any conversation with Mr. Simmons concerning the payment of the bond or the negotiations of a loan or any matter connected with the sale of the property under the deed of trust. All the defendants objected to any testimony by Mr. Green as to conversations or agreements alleged in the petition as having occurred between Mr. Green and Mr. Simmons, the latter being now dead, and further, that the rights of defendants Maginn and Labsap as purchasers could not be affected even if Simmons were alive, unless the allegations in the petition should be proved connecting them with the defendant company or its trustees, as having bought the property for it or them.

The court sustained the objection.

The conversation, after the sale, between Mr. Green and Mr. Wislizenus, and the latter and Mr. Kinealy in the absence of Maginn and Labsap, was admitted by the court against their objection, on condition, however, that plaintiff should by future evidence connect them with it, in some way to bind them; which plaintiff failed in any way to do. Mr. Green testified that on the day of sale he met Mr. Wislizenus, who told him, “If you go on any other program than that Mr. Maginn is the purchaser of that property, you will go on a false presumption. Mr. Maginn is the purchaser of that property, and he paid $500 earnest money on it.”

Plaintiff offered no other testimony than that of Mr Green in support of the allegations of the petition in respect to the agreements, as to new loan, and as to the Building Company buying in the property for plaintiff.

Plaintiff offered no testimony whatever tending to show any collusion between Messrs. Labsap and Maginn, or either of them, and the Building Company or its trustees or Simmons; or, that they were its agents, or had, either of them, bought in the property for said company; or that they had at any time any knowledge whatever of the allegations of the petition as to agreements and conversations prior to said sale, between Mr. Green and Simmons or the Building Company.

Mr. Green testified that the property was worth, at date of sale, $24,000. On cross-examination he testified that the house on the property, No. 2113 Pine street, would require $1,500 or $2,000 to put in shape for renting, on the date of sale; that for four or five years prior to the sale it had no tenant; that he valued the ground at $200 a foot, or $15,000; that the neighborhood was tenanted by immoral people; that he had bought it in, or traded for it 25 years ago; was now neither residence nor business property; knew of no sale recently in the vicinity.

Ben Yon Phul testified the ground was worth $175 to $200 a foot, in his opinion, and improvements from $4,000 to $5,000.

S. J. Fisher testified the property was worth between $15,000 and $17,000; he had sold it at auction in 1898 for $14,000.

On defendants’ behalf Mr. Joseph Dormitzer testified to having been in the real estate business forty years, in St. Louis; knew this property for many years; was familiar with values in its vicinity; the property could only have been sold for speculative purposes and would not have been worth more than $10,000; was present at the sale, and bid $7,000, and wouldn’t bid more; had bought and sold property and owned property in that neighborhood.

Henry L. Cornet, for defendants, testified that its fair market value, at date of sale, was about $150 a foot, and did not attach much importance to the improvements on that valuation of $11,250.

Defendant Maginn testified on behalf of defendant to the effect that Mr. Labsap had bought the property for himself and witness, each furnishing one-half of the purchase money; that the purchase was entirely a private venture of witness and Labsap, and that witness, except as purchaser, had, prior to the sale, no connection with the property; no claim or interest in it whatever; that he and Labsap had bought it hoping to realize some profit from the purchase; and on defendants’ behalf he testified as to the expenditures made by him and Mr. Labsap, submitting a list of items under a notice from Mr. Kinealy to do so, which was offered in evidence, and showing over $10,500 actually expended for the property at time of trial.

Mr. Wislizenus testified, confirming Mr. Green’s statement of their conversation on the day of sale; and that at that time and subsequent thereto, he never knew or heard and never had any suggestion or understanding that the property was to be bid in by the trustees, or that there was any arrangement with Mr. Green of any sort whatsoever; that the defendants’ trustees, except witness, have since November, 1900; been in charge of the company’s affairs and have wound them up as statutory trustees; Mr. Simmons was, barring his days of sickness, there every day, attending to that business. Mr. Wislizenus was not a director of the St. Louis Mutual House Building Co. No. 3, nor was he one of the trustees, winding up the affairs of said corporation.

This was, in substance, all the evidence in the case.

The first assignment of error is with respect to the action of the court in holding that Charles Green was incompetent to testify as a witness to conversations and oral agreements with Mr. Simmons, former president of the House Building Company and managing head of the trustees in liquidation of said company, to the effect that such trustees or Mr. Simmons himself, on their behalf, would bid in the property at the sale under the deed of trust, he, Simmons, being dead at the time of the trial. The argument is that Simmons was merely the agent of the defendant House Building Company, ’and the death of Simmons did not render Green incompetent to testify as to his negotiations with Simmons concerning the loan. In support of this contention plaintiff relies upon the case of Clark v. Thias, 173 Mo. 628, and 30 Am. and Eng. Ency. Law (2 Ed,), 1046.

In Clark v. Thias, supra, the question was as to whether Martin, a witness who was acting as clerk or agent for Clark & Martin at the time the note in question was taken, was competent to testify in regard to transactions between himself and Mary Larkin in a suit by Clark against Thias, as administrator of Mary Larkin, deceased, to set aside a deed to certain real estate conveyed by her to defraud her creditors. Martin, the witness, had no interest in the note, nor was he a party to the suit, and the court very properly held that he was competent to testify. [30 Am. and Eng. Ency. Law (2 Ed.), 1046.] But in the case at bar, witness Green, a member of the Charles Green Real Estate Company, the party plaintiff, was held incompetent to testify, and, we think, properly, to alleged conversations and oral agreements with Simmons, as former president of the House Building Company, defendant, and the managing head of the trustees in liquidation of said company. Simmons was the agent of the House Building Company, and he being dead, Green was not competent, under the circumstances, to testify to any conversations or negotiations had with Simmons concerning the loan. [Sec. 4652, R. S. 1899; Williams v. Edwards, 94 Mo. 447, and cases cited.]

It is contended by plaintiff that the evidence shows that the sale under the deed of trust was purely on credit, and was made in accordance with a secret previous arrangement with the trustee for the benefit of defendants Maginn and Labsap who had no interest in the debt or property. That, to pay the amount of their bid, they made a loan upon the property for $6,500 and paid the amount to the trustee on June 8, 1901, and the balance by Labsap’s check for $1,025. That this was an unfair discrimination in favor of two speculators, arranged beforehand, and was a violation of the trustee’s duty as set forth in the deed of trust, and should have caused the court to set aside the sale, especially when, by reason thereof, the property brought only about one-third of its value.

The trustee in the deed of trust was the agent of both the owners of the property and of the secured debt, and it was his duty to act without partiality towards either of them. He had no authority to do other than to sell the property to the best advantage of. the owner of the debt and the debtor, alike, and conduct the sale according to the terms of the deed of trust, and with absolute fairness. The deed of trust having provided that the property should be sold for cash, nothing less than a substantial compliance with that provision could suffice. [Coler v. Barth, 21 Colo. 31; 2 Jones on Mortgages (6 Ed.), sec. 1868; Scott v. Sierra L. Co., 67 Cal. 71.]

It was announced by the trustee at the time of the sale that the purchaser would be required to pay the sum of $500 upon bidding off the property described in the deed of trust. This was done, and on June 8, 1901, the balance of the purchase price was paid, and on the same day the trustee executed and delivered to Sigmund Labsap a deed to the property. .

There was no evidence tending to show collusion between Labsap and Maginn, or between either of them and the Building Company or its trustees, or Simmons, or that they were the agents of and purchased the property for said company, or that they had at the time of the sale any knowledge as to any agreements or conversations, prior to said sale, between Green and. Simmons or the Building Company. Nor was there any evidence tending to prove that the property would have brought more money at the sale but for the announcement of the trustees that $500 would have to be paid by the bidder at the time the property was knocked off to him.

In Goode v. Comfort, 39 Mo. 313, it is held that the deed of trust under which the sale of the property in question was made empowered the trustees to sell for cash, but that they had no authority to superadd any terms which a proper construction of the instrument did not reasonably imply; that sales by trustees had been likened to sales by a master of chancery, and the rule was always to allow the purchaser a reasonable time—a fair opportunity to examine his deed, and to submit it to the inspection of his counsel before he was forced to part -with his money. Further on in the opinion it is said: “Without it can he shown that the announcement had the actual effect of keeping persons present from bidding, we are inclined to the opinion that it would not furnish sufficient warrant for setting aside the sale and holding it invalid on that account. Had persons been present who desired to bid, and been prevented or deterred in consequence of this course, it would present a different- ease.”

In Markey v. Langley, 92 U. S. 142, it is said: “If the power require the sale to be made for cash, and it is made for part cash and part credit, the departure from the power is beneficial to the mortgagor, and the sale is valid.” [Hubbard v. Jarrell, 23 Md. 75.] Further on in the same decison there is quoted, with approval, from the case of Mahone v. Williams, 39 Ala. (N. S.) 202, the following: “In determining upon the approval or rejection of the sale in such cases, the true question to be considered is, not so much whether there has been a literal or technical, as a fair and reasonable, compliance with the terms of sale, and a bona-fide disposition of the property.”

The sale under consideration seems to have been a substantial compliance with the deed of trust, and free from fraud, and the fact that the purchasers did not .pay all of the purchase money for several days after the sale did not make it a sale upon credit. No one was injured by reason of the failure to pay all the purchase money at the time or upon the day of sale, and the sale should not be set aside because of such failure.

It has been many times held by this court that inadequacy of price, in the absence of fraud or unfair dealing, is not a sufficient ground for setting aside a sale under a mortgage or deed of trust, and there is nothing disclosed by the record in this case to take it out of the general run of cases to which this rule is applicable. [Keith v. Browning, 139 Mo. 190; Hardwicke v. Hamilton, 121 Mo. 465; Phillips v. Stewart, 59 Mo. 491; Maloney v. Webb, 112 Mo. 575; Harlin v. Nation, 126 Mo. 97; Markwell v. Markwell, 157 Mo. 326.]

Onr conclusion is that the judgment should be affirmed. It is so ordered.

All concur.