author: GRAVES, P. J.

text:
    PAULA F. FINLEY, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS.
    Division One,
    November 29, 1911.
    1. APPEAL: Abstract: Agreement for Additional Time. Where the attorneys for the appellant and respondent have agreed before the expiration of the time for the service of the abstract that it would be in time if served thereafter within a time designated, and it is served within that time, it will be considered on appeal.
    2. -: -: Record Matters at Former Trial. An additional abstract showing a former trial of the same cause in the circuit court of St. Louis, being the same court from whose judgment the appeal is taken by plaintiff, after a ruling by the court that it had no jurisdiction; showing a verdict and judgment in said former trial of $3000; that a motion for a new trial was filed, and was overruled; that defendant filed an affidavit for an appeal, and an appeal was granted to the S't. Louis Court of Appeals; that a mandate of the Springfield Court of Appeals, purporting to reverse the judgment for $3000, was filed in said circuit court; and an additional statement to the effect that a duly certified copy of the judgment and order granting the appeal was thereafter filed in the St. Louis Court of Appeals, and that said court made an order to transfer the case to the Springfield Court of Appeals, can be filed in the appeal from the last judgment to the Supreme Court; and all of the matters therein contained, being matters of record in the'7 circuit court, are properly in the case, except those matters pertaining to the filing of the appeal in the St. Louis Court of Appeals and its transfer of the case to Springfield Court of Appeals, which are not record matters of the circuit court.
    3. NEGLIGENCE: Damages: Earning Capacity: Limited in Petition: Unlimited in Instruction. Where the petition limits the amount of plaintiff’s damages for an itemized injury, the instruction should not authorize an unlimited award. Where plaintiff in her petition charges that “she has been and will be unable to work and earn wages at the rate of three dollars per day, to sustain and support herself,” an instruction telling the jury to assess her damages at such sum as will reasonably compensate her for whatever injuries she has sustained, and in estimating such damages to take into consideration “the impairment of her ability to work or labor, if any, and directly caused by such injuries,” is erroneous. The petition fixed the amount of her recovery at not to exceed three dollars per day, and the instruction gives the jury the right to fix this item of damages at a higher sum.
    4. APPEAL: Error in Instruction: New Trial Granted on Other Grounds: Affirmance. For error in instructions given for plaintiff, the Supreme Court, on plaintiff’s appeal from an order granting defendant a new trial on other grounds, will affirm the judgment or order.
    5. -: To Wrong Court: Reversal: Cause Pending: Jurisdiction. Where an appeal was taken by defendant from a judgment of the circuit court of St. Louis, awarding plaintiff $3000, to the St. Louis Court of Appeals, and that court transferred the case to the Springfield Court of Appeals (which reversed the judgment and remanded the case), the circuit court had no jurisdiction to retry the case, for it was still in the St. Louis Court of Appeals undecided, which court never had any jurisdiction to transfer the case to the Springfield Court of Appeals, since the statute authorizing it to do so is and was unconstitutional and void; and a decision of this court so holding, handed down in the midst of the second trial, authorized the circuit court to grant a new trial for lack of jurisdiction.
    6. JURISDICTION: How Derived-: Coram Non Judice. The power of a court to act in. any case comes from the Constitution and laws of the State, and not from a one-time mistaken judgment of the Supreme Court interpreting that Constitution and those laws. All acts of a court without jurisdiction over the subject-matter are coram non judice; that is, acts in the presence of persons and not judges, so far as the acts relate to the particular case.

      7. -= — : Waiver: Going to Trial After Appeal. After plaintiff has obtained judgment and defendant has appealed to the proper appellate court, defendant does not waive the lack of jurisdiction of the same circuit court to try the ease a second time on the same petition, by going to trial; although the Court of Appeals to which the case had been appealed transferred the cause to another Court of Appeals, and that court, although without jurisdiction, reversed the judgment and remanded the cause to the circuit court. And a judgment at another trial, after such reversal, must be-reversed, since the circuit court was without jurisdiction over the subject-matter, as shown by its records, for they showed the case was still in the Court of Appeals to which the case had been properly appealed.
    Appeal from St. Louis Circuit Court .- — Hon. Daniel D. Fisher, Judge.
    Affirmed.

      8. P. Bond for appellant.
    (1) The court erred in granting the defendant a new trial on the ground that the circuit court had no jurisdiction to try the case, because the circuit court had jurisdiction over the subject-matter. The petition states a case belonging to a general class over which the authority of the court extends, and if defendant had a legitimate defense it should have set it up in the answer. Padgett v. Smith, 206 Mo. 303; Tube Works Co. v. Ice Machine Co., 201 Mo. 301; Viertel v. Viertel, 212 Mo. 562; Coffee v. Groover, 20 Fla. 64; Amsden v. Railroad, 32 Iowa, 288; Gaston v. Batts, 73 Mo. 277. (2) The court-erred in granting the defendant a new trial on the ground that the circuit court had no jurisdiction to try the case, because the defendant waived the jurisdiction of the circuit court by asking and obtaining a new trial on a former verdict against it by waiving any question as to the jurisdiction of the Springfield Court of Appeals to grant it a new trial and requesting it to do so, by agreeing to the amendment of the plaintiff’s petition a short while before the day the case was set for retrial, announcing ready for trial, participating in the trial of the case, cross-questioning plaintiff’s witnesses, introducing evidence to maintain the issues in its own behalf, requesting and being granted instructions,' arguing and generally appearing in the case. After an appeal bad been taken from an order sustaining a motion for a new trial and setting aside a finding for the appellant, if be participates in a second trial be waives bis appeal. Trundle v. Insurance Co., 54 Mo. App. 188; State ex rel. v. Grates, 143 Mo. 63. (3) The court erred in granting the defendant a new trial on the ground that the circuit court bad no jurisdiction to try the case because, if the defendant did have a right to have the St. Louis Court of Appeals, in the first instance, bear its motion for a new trial on the first verdict, it waived its constitutional rights, as pointed out in second point of this brief, and it is therefore estopped by its own acts to assert the unconstitutionality of the statute. A party may waive a constitutional as well as a satutory provision. State ex rel. v. Messerly, 198 Mo. 351; Henderson v. Koenig, 192 Mo. 690; Merrill v. City of St. Louis, 83 Mo. 244; Williams v. Railroad, 153 Mo. 487; Pierce v. Railroad, 171 U. S. 641; Lee v. Tilloston, 24 Wend. (N. Y.) 337; Pbyfe v. Eismer, 45 N. Y. 104; Tone v.~ Columbus, 39 O. St. 281; Hartford v. State National Bank, 53 Mo-. 330; Wilson v. Railroad, 87 Mo. 431. (4) The court erred in granting the defendant a new trial on the ground that the court bad no jurisdiction to try the case because the defendant failed to plead it in its answer and incorporate it in its instructions and in so failing waived any right it may have bad. Lobmeyer v. Cordage Co., 214 Mo. 685; Thompson v. Insurance Co., 217 Mo. 485. (5) The respondent is estopped by its waiver and own acts in this case from claiming the circuit court bad no jurisdiction to try the case. State ex rel. v. Muencb, 230 Mo. 236; State v. Mitchell, 229 Mo. 683. (6) Where a party has asked for a new-trial, and that is only what the record shows in this case, and has obtained it, he should not afterward be heard to question that which he has asked and received. Railroad v. Bridge Co., 215 Mo. 286. (7) On the day this case was set for argument before the Springfield Court of Appeals, it was a mooted question in this State whether that court had jurisdiction to hear and determine the case and the court, before it would hear the case argued, required the counsel for the then appellant and respondent to enter into a stipulation waiving any jurisdictional question and agreeing to abide by the decision of the three jurists, although it might prove they had no authority from a constitutional standpoint to hear and determine the case. On Monday, December 5, 1910, the Springfield Court of Appeals decided in favor of the appellant, granting it a new trial. The motion for a rehearing was overruled January 3, 1911. Blyston-Speneer v. United Rys. Co., 132 S. W. 1175. While the motion for a rehearing on the part of the respondent, Blyston-Speneer, was pending, on December 17, 19.101, seventeen days before'it was overruled, the Supreme Court held in the case of State ex rel. v. Nixon, 133 S. W. 3J0, that the Springfield Court of Appeals had jurisdiction in such cases.

      Boyle é Priest, B. E. Blodgett and T. E. Francis for respondent.
    (1) The court did not err in sustaining defendant’s motion for a new trial and in arrest of judgment on the ground thát it had no jurisdiction of the cause, since the first judgment rendered in the cause was a final judgment and had not been vacated or set aside, and the court, therefore, had no jurisdiction to try the case again, and all its proceedings therein, including the attempted rendition of a second judgment, were void. R. S. 1909, sec. 2090; Mason v. McLean, 6 Wash. 31; Muckolls v. Irwin, 2 Neb. 60; 1 Black on Judgments (2 Ed.), sec. 304. (2) Defendant did not waive lack of jurisdiction on the part of the court by participating in the trial, for the reasons: (a) The court had exhausted its jurisdiction over the case by rendering a final judgment therein, and its lack of jurisdiction to proceed to render another judgment was a lack of jurisdiction over the subject-matter which could not be waived. State ex rel. v. Nixon, 134 S. W. 538; Mason v. McLean, 6 Wash. 31; Muckolls v. Irwin, 2 Neb. 60; 1 Black on Judgments (2 Ed.), sec. 304. (b) Because waiver is the intentional relinquishment of a known right, and defendant, by its plea to the jurisdiction, challenged the jurisdiction of the court and protested against further proceedings being had, as soon as it obtained knowledge of its rights. 29 Am. and Eng. Ency. Law, 1093. (3) The instruction on the measure of damages is erroneous, for the reason it allows a recovery for. the impairment of plaintiff’s ability to work, without limiting it to the amount demanded therefor in the petition, viz.: $3.00 per day. Radtke v. Box Co., 229 Mo. 1.
   GRAVES, P. J.

This plaintiff sues the defendant for injuries to herself and to her underwear, Eton suit, and hat she was wearing at the time of accident. Damages were laid at the aggregate sum of $25,000. Itemized matters of damage, in addition to general damage, are (1) hospital bill, $71.70, (2) nurse hire, $39.40 and $80, (3') ambulance hire, $10', (4) doctor’s bill, $320, (5) to glasses for eyes owing to injuries thereto, $35, and (6) for injuries to her underwear, Eton suit and hat, $65.

Defendant is charged (1) with a violation of the Vigilant Watch ordinance of the city of St. Louis, and (2) with a violation of the speed ordinance of said city. These are the sole grounds of negligence pleaded.

Answer was (1) general denial, and (2) a plea of contributory negligence. Eeply was general denial.

Plaintiff, upon a trial before a jury, had a verdict for $8,750', upon which judgment was rendered. Defendant filed its motion for new trial and in arrest of judgment, and the motion for new trial was sustained on the ground that the trial court had no jurisdiction of the cause. From this judgment sustaining said motion the plaintiff has appealed. Matters of evidence so far as required will, be noted in the opinion.

I. The first question presented is whether or not we should consider an additional abstract of the record filed by defendant in this cause. Plaintiff objects to it because not served in time and because not properly a part of the record in this case. Upon the first objection affidavits have- been filed. For the defendant, the affidavits tend to show that the attorney for plaintiff before the expiration of the time for service of the additional abstract agreed that it would be satisfactory if served the day after the time had expired, and that it was so served. Affidavit contra by attorney for plaintiff. The several affidavits for the defendant, one of which is from an entirely disinterested person, the printer of the record offered, leads us to conclude that there was an agreement, and that the abstract was served at the time agreed upon by the parties. This objection will therefore be overruled.

The second objection goes to the substance of the additional abstract. With one exception, the additional abstract is matter of record in the case at bar in the St. Louis Circuit Court. The. additional abstract shows a trial of this same cause in April, 1909. It shows a judgment for the plaintiff in the sum of $3,000, upon a verdict of a jury-in that sum. It shows the filing and overruling of a motion for a new trial. It also shows the filing of an affidavit for an appeal, and the order of the eircnit court granting an appeal to the St. Louis Court of Appeals. There is also shown by this additional abstract that a mandate of the Springfield Court of Appeals, purporting to revérse the judgment áforesaid was filed in the circuit court, where all of these matters are matters of record in the circuit court. The only other matter contained in this additional abstract is a statement to the effect that a duly certified copy of the judgment and order granting the appeal was filed in the St. Louis Court of Appeals, June 29, 1910, and that said last named court made an order attempting to • transfer the case to the Springfield Court of Appeals.

It will be observed that all the matters set out in the additional abstract of record are matters of record in this case in the circuit court, save the last mentioned matter. That, if a record at all, is a record in the St. -Louis Court of Appeals. Barring this last mentioned record we think the additional abstract is proper. They are all matters of which the- trial court in the second trial must take judicial notice as being a part of the case before him on the second trial.

We therefore rule that in so far as the additional . abstract contains matters of record or on file in the circuit court it is proper. To what extent they may avail the defendant on this appeal we discuss later.

To our minds' there are two propositions upon which this judgment must be affirmed. A ruling upon one would not necessarily preclude a rehearing of the cause, but a ruling upon the other would mean an absolute disposition of the cause for the present. These two questions we take in the order stated. The question raised as to the sufficiency of the proof to make a case, we do not discuss for reasons which will become apparent later.

II. One fatal question in the case is rthe instruction upon the measure of damages. This instruction reads:

“The court instructs the jury that if they find a verdict in favor of the plaintiff, they will assess her damages at such sum as will reasonably compensate her for whatever injuries you believe from the evidence she has sustained, if any, and in estimating such damages you will take into consideration:
“1st. The nature, character and extent of such injuries, if any, and directly-caused thereby.
“2nd. The physical condition she was in before the injuries, the physical pain and mental anguish, if any, which she has suffered from said injuries and directly caused thereby.
“3rd. The pain of body and mind, if any, which plaintiff is reasonably certain to suffer from said injuries in the future, and directly caused thereby.
“4th. The impairment of her ability to work or labor, if any, and directly caused by such injuries.
“5th. The reasonable expenses paid out and incurred by her, if any, for hospital bills'on account of such injury, if any, and directly caused thereby, in a sum not to exceed $71.70; the reasonable expenses paid out and incurred by her, if any, for nurse hire, on account of such injuries if any, and directly caused thereby, not to exceed $39.40; the reasonable’ expenses paid out and incurred by her, if any, for ambulance hire on account of such injuries, if any, and directly caused thereby, not to exceed $10; the reasonable expenses paid out and incurred by her in procuring physicians ’ and doctors’ attention, if any, on account of such injuries, if any, and directly caused by such injuries, not to exceed $225; the reasonable damage incurred by her, if any, to her underwear, Eton suit, and hat, if any, on account of said injuries, if any, and directly caused thereby, not to exceed $65.
“Your finding in the aggregate whieh yon may allow plaintiff will not be over twenty-five thousand dollars.”

It is the fourth specification which renders the instruction bad. There is no limit placed to the amount of recovery upon this item of damage by the instruction. Turning to her petition we find that the plaintiff did place a limit upon this item of her damages. The petition upon this point, reads:

“That she has been, and will be unable to work and earn wages,' means and salary, as a seamstress and tailor, at the rate of three dollars per day, to support and sustain herself.”

By the petition the impairment of her earning capacity was' limited to three dollars per day. The allegation above quoted refers to future as well as past impairment of earning capacity. The petition says that “she has been (past) and will be (future) unable to work and earn wages ... at the rate of three dollars per day.” Under this allegation the amount of recovery as to impairment of earning capacity, both future and past, should have been limited to at least the three dollars per day asked in the petition. After plaintiff had seen fit to limit this item of damage, the jury should not have been given the unbridled license contained in this instruction. The exact question has. been passed upon in several very recent cases.

[Radtke v. Basket & Box Co., 229 Mo. l. c. 18; Smoot v. Kansas City, 194 Mo. 513; Heinz v. Railroad, 143 Mo. App. 38.]

In the Radtke case, supra, we reviewed the authorities upon the question, and in so doing in part said: ‘ ‘ The petition charged that his loss of earnings before the trial were nine dollars per week. Not only so, but that was the measure fixed for future loss of time for the petition reads: ‘ and will continue to lose said sum in the future for an indefinite period.’ The instruction permits recovery for ‘loss of time’ without any limitation whatever. The petition not only fixes the amount of lost earnings suffered, but limits the loss of earnings in the future. It covers-both those earnings suffered and to be suffered. It fixes the value of all such earnings at nine dollars, per week. It is true that the petition avers that plaintiff’s earning capacity ‘is greatly impaired and perhaps entirely gone,’ but that does not change the: fact that the value of the earnings was fixed by the petition. Defendant had a right to rely upon the admission' of plaintiff that his loss in this respect had been and would be only nine dollars per week, and it was the duty of the court to so limit the right of recovery in this regard. The instruction given was erroneous upon this question. [Smoot v. Kansas City, 194 Mo. l. c. 522; Heinz v. Railroad, 143 Mo. App. 38.]”

In the Smoot case, supra, we used this language: “Applying the rules as thus indicated by the cases heretofore cited, should this court undertake to cure the error of instruction numbered 4 by ordering that a remittitur he entered? Upon a careful consideration of the entire record we have reached the conclusion that it should not. The record in this case presents an action for personal injuries, and it is clear that there is no positive criterion for determining what the damages ought to be, nor can this court determine what elements of damages were considered by the jury in arriving at their verdict. They were directed by instruction 4, without any limit being fixed, to assess the damages for the loss of time by the plaintiff from his means of livelihood, and it would simply be pure guesswork by this court, as was said in Slattery v. St. Louis, 120 Mo. 183, as to what amount was allowed by the jury for damages occasioned by the loss of such time.”

So in the case at bar the plaintiff saw fit to fix her earning capacity in the petition at three dollars per day although she testified that she earned from three to five per day. The defendant had a right to assume under these pleadings that she would not be permitted to recover more than she claimed. “Whether she did or not we cannot determine. Like the Radtke ease the size of the verdict bespeaks close scrutiny. On a first trial a jury only gave her $3,000 and less, than two years thereafter she gets a verdict of $8,750. The first verdict was in March, 1909, and the latter in February, 1911.

For the error in this instruction the judgment should be affirmed, although not assigned as a reason by the trial court.

However, there is a more serious defect in the record, which we take next.

II. That the St. Louis Circuit Court lost jurisdiction of this cause when it granted an appeal to the St. Louis Court of Appeals there can be no question. The real question is whether or not it was reinvested with jurisdiction by the mandate of the Springfield Court of Appeals. If it was not, then it was without jurisdiction to proceed further. We must judicially know that the St. Louis Circuit Court is not within the appellate district of the Springfield Court of Appeals, but that appeals from such court must go to the St. Louis Court of Appeals, because within the territorial limits of such appellate district. We have but recently held that the judgment of the. Springfield Court of Appeals in a case coming from the St. Louis Court of Appeals District was null and void. [State ex rel. v. Nixon, 232 Mo. 496.]

In this case we held that jurisdiction in the Springfield Court of Appeals could not be conferred by consent, because there was no jurisdiction of the subject:matter. This opinion was handed down February 9, 1911, at which time the present' case was on trial before the circuit court. Counsel for defendant, immediately, on February 10th, the morning after our ruling, challenged the jurisdiction of the circuit court to further proceed in the case, but the trial court proceeded to finish the case, and then sustained the motion for new trial as we have above indicated. It is urged that when the Springfield ..Court of Appeals opinion and mandate in the case at bar was delivered there had been handed down by this court an opinion in State ex rel. Furstenfeld v. Nixon, 133 S. W. 340, wherein we had said that in cases where the parties had consented to a hearing before the Springfield court, the jurisdiction was waived. This is true that such was done by a divided court, but we do not see how that avails the plaintiff here. It is urged that the Springfield Court of Appeals was then following our last decision as by the Constitution it was bound to do. For the sake of the argument, grant that to be true, although as a matter of fact it is evident from the record before us that when the parties consented to the jurisdiction of that court, no further concern was had as to jurisdiction. But be that as it may, it cannot help the plaintiff here. The same Constitution commanded the circuit court to follow our latest utterance, and when the circuit court was called upon to act, we had said that this mandate and judgment of the Springfield court was void. We cannot convict the circuit court of error for following our last utterances upon a vital question in the case. Plaintiff acquired no fixed rights in the interim between the two opinions. One was handed down December 17th, and the other February 9th following. Her case is just where it was before the void judgment of the Springfield court, i. e., in the St. Louis Court of Appeals. It is just where it was prior to the void order of transfer made by the St. Louis Court of Appeals, if such order was made. All acts of the Springfield Court of Appeals were coram non judice, i. e., acts in the presence of persons and not judges so far as this particular cause is concerned. The power of that court to act in any case comes from the Constitution and laws of the State, and not from a one-time mistaken judgment of this court in the interpretation of the Constitution and laws. The erroneous judgment in the Furstenfeld case added no vitality to the judgment rendered hy the Springfield court. To our mind the test is as to what was the duty of the trial -court at the time it had to wrestle with the question of its own jurisdiction. At-that time we had declared that under the law the judgment of the Springfield court was a nullity, and the trial court could not do otherwise than to do as was done.

In our judgment, the trial court was without jurisdiction.

III. It is urged that the defendant waived the jurisdiction of the circuit court by going into the second trial. This position is not tenable for the reason that after the first judgment for $3,000 was entered and the circuit court granted an appeal to the St. Louis Court of Appeals, the circuit court parted with jurisdiction of the very subject-matter. The whole case was gone from its jurisdiction and its jurisdiction of the subject-matter was not reinvested. Without the court being possessed of the subject-matter no act of the parties can confer jurisdiction. The want of jurisdiction over the subject-matter was apparent from the court’s own records in the cause.

It has been held, and I think properly, that a defendant hy going into a second trial after the defendant had taken an appeal from an order granting the plaintiff a new trial on a verdict in defendant’s favor, should he held to have waived the appeal. [Trundle v. Insurance Co., 54 Mo. App. l. c. 191-192.] This Trundle case was cited with approval hy this court in State ex rel. v. Grates, 143 Mo. l. c. 69, although the precise question was not before us for decision.

But the Trundle case is not this case. In this case if we say the defendant waived its appeal, we still have the judgment for $3,000= staring the trial court in the face and bespeaking final adjudication of the case.

Plaintiff did not bring her suit over, but proceeded to the second trial of the same case, with the record entries therein within the judicial notice of the court. A court must know what has been done in a particular case from its inception to its close, and a plea of res adjudicata finds no place in such a situation.

To our mind there is nothing in either the question of waiver or the want of a plea of res adjudicata. If the appeal of defendant could be and was blotted out by acts which amounted to a waiver of the appeal, there was still left of record this judgment of three thousand dollars which was not waived.

Waiver is an intentional act, and outside of the foregoing it is clear that the defendant was waiving nothing in this case. We are forced to the conclusion that this case is yet pending in the St. Louis Court of Appeals and that plaintiff should have gone to that tribunal rather than to the circuit court. In our opinion the face of the record in this case bespeaks the lack of jurisdiction in the circuit court at the rendition of this last judgment and its order granting a new trial for that reason is sustained and affirmed.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    THE STATE v. WABASH RAILROAD COMPANY, Appellant.
    Division One,
    November 29, 1911.
    1. RAILROAD EMPLOYEES: Required to Work Without Rest: Unconstitutional Act. The Act of March 25, 1905 (Secs. 7818 and 7819, R. S. 1909), providing that no railroad trainman of a freight train shall be required to work in operating such train more than sixteen hours in any one day of twenty-four hours, nor having so worked for sixteen' hours be required or permitted to go to work again until he has had eight hours’ rest, applies to interstate and intrastate commerce alike, and embraces the same subject and contains many of the same provisions as the Act of Congress of March 4, 1907, which is an exercise of the interstate commerce clause of the Constitution of the United States, and therefore said sections 7818 and 7819 are unconstitutional and void; and a railroad company which has required a conductor of freight trains engaged in interstate commerce, to return to work without eight hours’ rest after a previous service of more than sixteen hours, cannot be convicted in the State courts, although the train was run by said conductor only between two towns in this State.
    2. -: -: Interstate Trains: Act of Congress in Force at Time of Trial. A railroad company required a conductor of a freight train engaged in interstate commerce to work continuously for over twenty hours, in conducting said train from one station in this State to another station- in this State, the train all the time being within this State; and at the last station, after only four hours’ rest, required him to take charge of another train engaged in interstate commerce and to work for thirteen hours in conducting it to another town in this State. Held, that the railroad company cannot be prosecuted under the Act of March 25. 1905 (Secs. 7818 and 7819, R. S. 1909), since that act, as to interstate commerce, has been superseded and supplanted by the Act of Congress of March 4, 1909, which covers the same subject, and was in force- at the time of the trial, though not at the time the conductor was so required to work.
    Appeal from Audrain Circuit Court. — Hon. Jas. D. Barnett, Judge.
    Reversed and remanded (with directions).

      J. L. Minnis and Robertson & Robertson for appellant.
    The defendant was engaged in interstate commerce. Not only is this presumed by the court, but that fact stands established by the evidence in this case; and this case is thereby brought within the rule announced in State v. Railroad, 212 Mo. 658. The testimony discloses that part of the train was actually engaged in interstate commerce, carrying cars destined for points outside of the State. The Employees ’ Liability and Safety Appliance Acts, (Thonton), 35-42. This statute on the face of it not only in the title but within the body of the act itself, has attempted to legislate upon a subject entirely within the control of the Congress of the United States. The inhibition is directed against any railroad corporation operating a line of railroad in whole or in part in the State of Missouri. This statute is in conflict with the regulations prescribed by Congress on the same subject, and the power of the State over the subject is excluded. This prosecution was begun on October 26, 1907. The judgment of conviction was entered on the 8th day of July, 1908. At the time the prosecution was begun, the Congress of the United States had taken control of this question so far as railroads and railroad employees are concerned engaged in interstate commerce. The Act of Congress was approved March 4, 1907. The State statute is superseded by the' Act of Congress, and must give way, and in all things where there is a conflict, the Federal statute will control. Whenever there is a Federal statute upon the subject within the control of Congress, the State statute is of no effect- or has become superseded. This is. true even when the State law rests upon the police power of the State whenever Congress in the exercise of the powers granted it legislates upon the precise subject-matter. Railroad v. Heffley & Lewis, 158 U. S. 98. It is provided by this act that “it shall be unlawful for any corporation operating a line of railroad in whole or in part in the State of Missouri to require or permit any conductor, ’ ’ etc. The statute is directed, not only against the corporation operating a line of railroad in the State of Missouri alone, but against any railroad operating a line of railroad part in this and part in any other State. The statute is so drawn as not to distinguish interstate and intrastate commerce. A state statute so drawn as not to distinguish between interstate and intrastate commerce cannot stand as legislation upon either subject. State v. Railroad, supra. When the Congress of the United States legislated upon the subject, the Federal law superseded the State law upon the subject. Railroad v. Fuller, 17 Wall. 560; Wilson v. Blackbird, etc., Co., 2 Peters 245; Cooley v. Philadelphia Port Wardens, 12 How. 299; Pennsylvania v. Wheeling, etc., Bridge, 18 How. 421; Mobile County v. Kimball, 102 U. S. 691; Packet Co. v. Cattlesburg, 105 U. S. 559; Transportation Co. v. Parkersburg, 107 U. S. 691; Morgan v. Louisiana, 118 U. S. 455. Not only has Congress legislated upon the subject within its power and without the power of the State, but the regulations attempted by the State statute are in conflict with the Federal statute and the State law is, therefore, invalid. State v. Addington. 77 Mo. 116; State v. Railroad, supra.

      John D. Orear for the State.
    (1) The Legislature had a right to pass this law, and to determine into what State fund the penalty shall be paid. Cooley’s Const. Lim. 578; 5 Wait’s Act. and Def., sec. 7; Levy v. Gowdy, 2 Allen, 323; Weil v. Simmons, 66 Mo. 619; Cruschow v. Brown, 57 Mo. 38; Dailby v. Houston, 58 Mo. 361; Barnett v. Railroad, 68 Mo. 56. (2) This law is just and should be upheld. It prevents train crews from being overworked, and protects the public from the danger of being served by trainmen worked past human endurance.
   WOODSON, J.

At the January term, 1908, of the circuit court of Audrain county, John D. Orear, the prosecuting attorney thereof, filed therein, against the Wabash Railroad Company, the following information, to-wit:

“State of Missouri, County of Audrain.
“In Circuit Court, January Term, 1908'.
“The State of Missouri at the relation and to the use of John D. Orear, prosecuting attorney within and for the county of Audrain and State of Missouri, Plaintiff.
vs.
The Wabash Railroad Company, Defendant.
“Now comes plaintiff in the above entitled cause, and for its cause of action states that the defendant herein is a corporation duly organized and existing under and by virtue of the laws of the State of Missouri, and as such corporation is engaged in operating a line of railroad from the town of Moberly, in the State of Missouri, through the county of Audrain in the State of Missouri, and to Luther Station, in St. Louis county, Missouri, and in transporting freight in freight trains over said line of railroad.
“That on the 25th, 26th and the 27th days of February, A. D. 1907, the said Wabash Railroad Company had in its employ one E. C. Deskin, who was then and there employed by said Wabash Railroad Company as a conductor on and for freight trains. That while in the employment of the said defendant, he, the said E. C. Deskin, was required by the said defendant to take charge of a freight train, belonging to said defendant, as conductor thereof, at Moberly, Missouri, at six o’clock in the afternoon of the 25th day of February, A. D. 1907, for the purpose of conducting said train to Luther Station, in Saint Louis county, Missouri. That the said E. C. Deskin acting under the orders of the said Wabash Eailroad Company, did then and there take charge of said freight train as conductor thereof,' and remained in charge of said freight train, as conductor thereof,, in actual and continuous service, without any r.est, sleep or relief from duty from said six o’clock in the afternoon of said 25th day of February, 1907, until he arrived in Luther Station, Saint Louis county, Missouri, with said freight train as conductor thereof, at twenty-five minutes past two o’clock in the afternoon of the twenty-sixth day of February, 1907.
“Plaintiff states further that at thirty minutes past six o’clock in the afternoon of the s'aid twenty-sixth day of February, 1907, the said Wabash Eailroad Company did then and there, unlawfully require the said E. C. Deskin to take charge of a freight train, as conductor thereof, for the purpose of conducting-said freight train, from said Luther Station, in Saint Louis county, Missouri, to the town of Moberly, Missouri, before he, the said E. C. Deskin had eight hours’ rest. That the said E. C. Deskin in compliance with the demand of the said Wabash Eailroad Company, and without being permitted by said Wabash Eailroad Company to have eight hours ’ rest, did take charge of said freight train, as conductor thereof, at said Luther Station in'Saint Louis county, Missouri, and continued in charge of said freight train as conductor thereof, and in continuous service of said Wabash Eailroad passing through a portion of Audrain county, Missouri, and until the town of Mexico, Audrain county, Missouri, was reached at twenty-twó minutes past seven o ’clock in the morning of the twenty-seventh day of February, 1907.
“Plaintiff states further that the said freight train which the said E>. C. Deskin was required to take charge of as conductor thereof by the said Wabash Eailroad Company, at said Luther Station, Saint Louis county, Missouri, at thirty minutes past six o’clock in the afternoon of the said twenty-sixth day of February, 1907, for the purpose of conducting said train to Moberly, Missouri, was not then and there a passenger train, nor a freight train loaded exclusively with live stock or perishable' freight, and that the said E. C. Deskin was not then and there the employee of a sleeping-car company, and that no accident nor casualty had occurred on defendant’s said railroad, prior to or during the movement of said freight train from Moberly, Missouri, to Luther Station, St. Louis county, Missouri, and from said Luther Station in Saint Louis county, Missouri, to Mexico, Missouri, that rendered the movement of said freight train from said Luther Station, Saint Louis county, Missouri, to said Mexico in Audrain county, Missouri, necessary, and that made it necessary for said E. C. Deskin to conduct said freight train from said Luther Station, in Saint Louis county, Missouri, to said Moberly, Missouri, without having eight hours ’ rest.
“Plaintiff states further that the said Wabash Railroad Company was during the month of February, 1907, engaged in operating a line of railroad from Moberly, Missouri, through the county of Audrain and State of Missouri to Luther Station in Saint Louis county, Missouri, and that said Wabash Railroad Company is still so engaged in operating'a line of railroad as aforesaid. That John D. Orear is the duly elected, qualified and acting prosecuting attorney of Audrain county, Missouri, and as such prosecuting atttorney, brings this action against said Wabash Railroad Company, in the name and for the use of the State of Missouri.
“Wherefore plaintiff prays that it have and recover from said Wabash Railroad Company, a penalty in the sum of one thousand dollars for said wrongful act as above set out, and for all other orders the court may deem proper and just.”

In due time the defendant filed its answer, com taining a general denial, and specially pleading that the information was wrongfully brought at the relation of the prosecuting attorney, and that it should have been- brought in the name of the State of Missouri only, and because it did not conclude with the words, “against the peace and dignity of the State,” as required by section 38 of article 6 of the Constitution.

, The answer also challenges the constitutionality of the Act of March 25-th, 1905-, p. 112, now sections 7818 and 7819, Eevised Statutes of 1909', upon which the information is based, for various reasons.

The Act of March 25-th, 1905, reads as' follows:

“Section 1. It shall be unlawful for any corporation or receiver operating a line of railroad, in whole or in part, in the State of Missouri, or any officer, agent or representative of such corporation or receiver to require or permit any conductor, engineer, foreman, brakeman, train-dispatcher, telegraph operator, or any trainman who has worked in his respective capacity for sixteen hours, within a day of twenty-four hours, to again go on duty or perform any work for such railroad until he has had at least eight hours’ rest; Provided, this provision shall not apply in case of accident or casualty, or prevent the train crew from taking a passenger train, or freight loaded exclusively with live stock or perishable freight t'o the next nearest division point, upon such railroad; Provided further, that this section shall not apply to employees of sleeping car companies.
“Section 2. Any corporation or receiver operating a line of railroad, in whole or in part, in this State, who shall violate any of the provisions of this act, shall be liable to the State of Missouri for a penalty of not less than five hundred dollars, nor more than one thousand dollars for each offense, and such penalties shall be recovered and suit therefor shall be brought in the name of the State of Missouri, in a court of' proper jurisdiction in any county in the State into or through (which) any such railway may run, by the-Attorney-General or under, his direction, or by the prosecuting attorney of any county through or into- or out of which trains may be operated by said railroad. All fines and penalties collected or received for any violation of this act shall be paid into the ‘good road's fund’ of the State of Missouri, to be used only in the construction of gravel or macadam roads in the several counties of the State, outside of the incorporated cities and towns, in such mariner as may be provided for by law.”

The facts out of which this prosecution grew are as follows: On the 25th and 27th days of February, 1907, the "Wabash Railroad Company, had in its employ as a conductor in charge of freight trains one E. C. Deskin. He was called by the Wabash Railroad Company to take charge of a freight train as conductor, to go from Moberly, Missouri, to Luther Station, in St. Louis county, Missouri, as conductor of the train, which he did. Said Deskin was called into service at six o ’clock p. m. February 25th, and after checking up his train, actually pulled out of Moberly at 5 :45 p. m. February 25th, and continued in actual continuous service as conductor of the freight train until its arrival in Luther Station, at 25 minutes past two o ’clock, the afternoon of the next day, February 26th. He was then allowed to rest until 6:30 o ’clock the same afternoon, when he was again called into service by said Wabash Railroad Company and ordered to take charge of a freight train, to run from said Luther Station to Moberly, Missouri, which he did, remaining in charge as conductor until 7:32 a. m. of the morning of February 27th. In other words the defendant company required Deskin, the conductor, to work continuously from 6 o’clock p. m. of February 25th to 2:25 p. m. of February 26th, which was twenty hours and twenty-five minutes. Then with only four hours and five minutes’ rest he was again called and placed in ■continuous service for thirteen hours and twenty-two minutes.

The evidence shows that the trains before mentioned were engaged in interstate commerce, at the dates complained of.

A trial was had, and under the facts as before stated the court found the defendant guilty and fixed its punishment at the sum of $700. From that judgment the defendant appealed to this court.

In this case, as in most of' them which find their way to this court, counsel for each party have presented numerous legal propositions for determination."

But after a careful reading of the briefs, and a critical examination of the authorities cited, we have reached the conclusion that the case of State v. Railroad, 212 Mo. 658, is controlling in this. Counsel for the defendant, here as there, insist that the act in question is violative of the interstate commerce clause of the Constitution of the United States.

On March 4th, 1907, Congress enacted the following statute:

“Chap. 2939 — -An Act to promote the safety of employees and travelers upon railroads by limiting the hours of service of employees there’on.
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that the provisions of this act shall apply to any common carrier or carriers, their officers, agents, and employees, engaged in the transportation of passengers or property by railroad in the District of Columbia or any Territory of the United States, or from one State or Territory of the United States or the District of Columbia to any other State or Territory of the United States or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States. The term ‘railroad’ as used in this act shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any common carrier operating a railroad, whether owned or operated under a contract, agreement, or lease; and the term ‘employees’ as used in this act shall be held to mean persons actually engaged in or connected with the movement of any train.
“Sec. 2. That it shall be unlawful for any common carrier, its officers or agents, subject to this act to require or permit any employee subject to this act to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such employee of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted again to go on duty until he has had at least ten consecutive hours off duty; and no such employee who has been on duty sixteen hours in the aggregate in any twenty-four hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty; Provided, that no operator, train-dispatcher, or other employee, who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four- hour period in all towers, offices, places, and stations continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places, and stations operated only during the day time, except in case of emergency, when the employees named in this proviso may be permitted to be and remain on duty for four additional hours in a twenty-four hour period or not exceeding three days in any week: Provided, further, the Interstate Commerce Commission may after full hearing in a particular case and for good cause shown extend the period within which a common carrier shall comply with the provisions of this proviso as to such case.
“Sec. 3. That any such common carrier, or any officer or agent thereof, requiring or permitting any employee to go, he, or remain on duty in violation of the second section hereof, shall be liable to a penalty of not to exceed five hundred dollars for each and every violation, to be recovered in a suit or suits to be brought by-the United States district attorney in the district court of the United States having jurisdiction in the locality where such violation shall have been committed; and it shall be the duty of such district attorney to bring such suits upon satisfactory information being lodged with him; but no such suit shall be brought after the expiration of one year from the date of such violation; and it shall also be the duty of the Interstate Commerce Commission to lodge with the proper district attorneys information of any such violations as may come to its knowledge. In all prosecutions under this act the common carrier shall be deemed to have had knowledge of all acts of its officers and agents: Provided, that the provisions of this act shall not apply in any case of casualty or unavoidable accident or the act of Grod; nor where the delay was the result of a cause not known to the carrier or its officer or agent in charge of such employee at the time said employee left a terminal, and which could not have been foreseen: Provided, further, that the provisions of this act shall not apply to the crews of wrecking or relief trains.
“Sec. 4. It shall be the duty of the interstate Commerce Commission to execute and enforce the provisions of this act, and all powers granted to the Interstate Commerce Commission are hereby extended to it in the execution of this act.
“Sec. 5. That this act shall-take effect and he in force one year after its passage.” [34 U. S. Stat. at Large, 59 Cong., Pt. 1. Pub. Laws, p. 1415, et seq.]

This prosecution was begun October- 26, -1907, and the conviction was had July 8, 1908, thus’showing that the act of Congress mentioned was in full force and effect, at the dates when this prosecution' was instituted, and the judgment of conviction entered.

By reading the act of Congress and the act of the Legislature previously set out, it will be seen that they -are practically the same and cover the same field or classes of legislation. "While the act of Congress limits the scope of its operation to interstate and foreign commerce, there is nothing in the act of the Legislature restricting its operation to intrastate commerce. That being true its provisions are sufficiently comprehensive to embrace interstate commerce as well as intrastate.

Moreover, the evidence in this case shows that the trains Deskin, the conductor, was required to operate and conduct were engaged, as a matter of fact, in interstate commerce.

That being true, I repeat that the two acts are precisely the same, and in so far, at least, as this case is concerned the two acts are almost identical with •each other, the act of Congress being slightly more favorable to the employees.

Upon such a state of facts, this court, in the case of State v. Railroad, supra, held that the Act of 1907, Laws 1907, p. 332, was violative of the interstate commerce clause of the Constitution of the United States, -and was therefore absolutely null and void.

The same ruling has been announced by the Supreme Court of the United States in numerous cases.

Consequently, in the case at bar, we are compelled to hold that since the act of Congress before mentioned covers the same subjects or classes of legislation that are covered by the act of the Legislature of 1905, the former nullifies tlie latter as completely as if it liad never been enacted.

Under tbis view of the case, it becomes unnecessary for us to decide the numerous other questions presented by counsel.

We are, therefore, of the opinion, that the judgment should be reversed and the cause remanded to the circuit court, with directions to quash the information filed against the defendant. It is so ordered.

All concur.


author: LAMM, J.

text:
    EDWARD DYRCZ v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division One,
    November 29, 1911.
    1. NEGUIGENCE: Unconstitutional Ordinances: Not in the Case. Where plaintiff alleged defendant was guilty of negligence in running the train in violation of certain city ordinances regulating speed and requiring the bell of the train to be rung, but did not put his case to the jury on either of those specifications of negligence, but stood on another ground alleged, namely, that defendant’s servants failed to exercise ordinary care to stop the train after they saw. his peril, defendant’s defense that the ordinances are unconstitutional and • void, although pleaded, is not in the case, and will not be considered on appeal.
    2. -: Pedestrain on Railroad Track: Known User: Humanitarian Rule. In the absence of a known user in the public of the railroad track of such sort as would cast the duty on the railroad defendant to look out for persons at the point of injury, then, in order to hold defendant liable under, the humanitarian doctrine for the injury to plaintiff due to his being struck by a train while he was walking on the track, it is necessary for plaintiff to show that he was actually seen by defendant’s' train servants on the track, between the point at which he entered it and the place of injury, in time .to have warned him and averted his injury by the use of ordinary care. /

      3. -: -: -: Crossing Track. A pedestrian who, in daylight, attempts to cross a much-used and unobstructed track immediately in front of an on-coming train, without looking or listening, and is struck by it, cannot recover, whether or not the place at which he attempted to cross had for a long time been customarily used by the public as a footpath.
    4. -: Crossing Track: Looking and Listening. A pedestrian in the act of crossing, in daylight, a much-used and unobstructed railroad track — which, is itself a sign of danger— is chargeable with negligence unless he looks and listens for approaching trains before entering upon the track.
    5. -: -: Evidence: Humanitarian Rule. Where plaintiff testified that he was in the act of crossing the track at the time the train struck him, and had not walked on the track at all, and all the other witnesses were in such a position that they could not see where he entered upon the track or whether or not he atemptéd to walk upon it in front .of the on-coming train, there is no room in the case for the humanitarian rule.
    Appeal from Buchanan Circuit Court. — How. G. A. Mosman, Judge.
    Reversed.

      Robert T. Bailey and Ben J. Woodson for appellant.
    The demurrer of defendant offered to the evidence should have- been sustained for the reasons, viz.: First. Because the plaintiff, a trespasser, stepped in front of the train without first looking or listening for it. Second. Because plaintiff' was warned by the sounding of the whistle in ample time to have gotten off the track, and his negligence in not doing so prevents his recovery in this ease. If plaintiff had knowledge of the approaching train, or if by the exercise of ordinary care he conlcl have known that fact, then he cannot recover, even though the bell was not rung or the whistle sounded. Harlan v. Railroad, 64 Mo. 480. The law as declared in the Harlan case, supra, has been enunciated by this court many times. Taylor v. Railroad, 86 Mo. 462; Purl v. Railroad, 72 Mo. 168; Hallihan v. Railroad, 71 Mo. 113; Kelley v. Railroad, 75 Mo. 141; Yance v. Railroad, 93 Mo. 437; Hanlon v. Railroad, 104 Mo. 388; Baker v. Railroad, 122 Mo. 573; Lane v. Railroad, 132 Mo. 27; Payne v. Railroad, 136 Mo. 576; Schmidt v. Railroad, 191 Mo. 228.

      Allen, Gabbert S Mitchell for respondent.
    (1) Plaintiff was not a trespasser. Plaintiff and a large number of others had for a long time been accustomed to use the track as a footpath. LeMay v. Railroad, 105 Mo. 370; Lynch v. Railroad, 111 Mr. 601; Guenther v. Railroad, 108 Mo. 18; Murrell v. Railroad, 105 Mo. App. 88. Even though notices may have been posted to warn people of danger and to keep them off the track, such notices are of ho avail to the defendant where there has been a long and continued disregard thereof by the public. Such are the facts in this case, Eearons v. Railroad, 180 Mo. 208-. (2) This case was submitted to the jury solely on the humanitarian doctrine. There was ample evidence to support the verdict. The track was straight for more than a mile on either side of the place where plaintiff was struck. The train crew had no right to expect a clear track. The track was constantly used by pedestrians, and had been for years. Eppstein v. Railroad, 197 Mo. 720; Fiedler v. Railroad, 107 Mo. 645; Fearons v. Railroad, 180 Mo. 228; Morgan v. Railroad, 159 Mo. 262; Scullin v. Railroad, 184 Mo. 695; Murphy v. Railroad, 228 Mo. 76; Ahnefeld v. Railroad, 212 Mo. 280 ; Cotner v. Railroad, 220 Mo. 306; Everett v. Railroad, 214 Mo. 54; Frye v. Railroad, 200 Mo. 400; Klockenbrink v. Railroad, 172 Mo. 678. There was substantial evidence to support the verdict of the jury. The verdict therefore is conclusive on the defendant and should not be disturbed on appeal. Morgan v. Keller, 194 Mo. 663; Levels v. Railroad, 196 Mo. 606; Stumpe v. Kopp, 201 Mo. 412; Wayland v. Johnson, 130 Mo. App. 80; Wood v. Railroad, 119 Mo. App. 78; LeMay v. Railroad, 105 Mo. 365. Where there is evidence to support the verdict which is approved by the trial court, the judgment will not be reversed, though the appellate court may believe the finding of the jury is against the weight of the evidence. Nephler v. Woodward, 200 Mo. 179'; Knapp v. St. Louis Trust Co., 199 Mo. .640; G'olyer v. Railroad, 113 Mo. App. 457; McNulty v. Railroad, 203 Mo. 475. Besides, defendant saw fit to stand on its demurrer to the evidence, thereby admitting plaintiff’s evidence to be true. (3) Plaintiff’s injuries are permanent — the verdict is small. The judgment is clearly for the right party, and should be affirmed, Woody v. Railroad, 104 Mo. App. 678; Peterson v. Railroad, 199 Mo. 331.
   LAMM, J.

Negligence. Plaintiff had a judgment for $1500 in the Buchanan Circuit Court. Defendant appeals, raising (among others) constitutional questions.

The gist of the complaint is that while plaintiff was on one of defendant’s tracks in South St. Joseph on his way home on the afternoon of September 23, 1907, at a point where said track was customarily used by many persons going to and returning from certain packing houses, and which customary use was known to defendant, its agents and servants in charge of its certain freight train, he was run down from behind by the engine pulling said train and grievously hurt, viz., the bones of his right leg were broken and he was otherwise bruised and wounded and thereby permanently disabled. That Ms injuries were caused by tbe negligence of defendant’s said servants and employees as. follows: (1) in that the train was negligently run at thirty miles per hour in violation of a certain ordinance of St. Joseph limiting the speed of trains within the city to five miles per hour (which ordinance was pleaded) ; in that (2) said servants and employees failed to sound the bell on said engine to warn plaintiff of the approach thereof, which fMlure was in violation of another ordinance of said city (also pleaded); and in that (3) defendant’s said agents and servants saw, or by exercise of reasonable care and diligence could have seen, plaintiff in peril on the track in time to. have averted his injuries, and negligently failed to warn him by bell, whistle or other signal and negligently failed to stop said train, etc. The petition charged furthermore that plaintiff was in the exercise or due care in looking and listening and at sundry times turned around to see that no train was coming from behind and was unaware of the approach of the train until it was too late for him to get out of the way.

Defendant answered by denying its own negligence and pleading the contributory ■ negligence of plaintiff, not only at the time of his injury, but since that time in aggravating his injuries by his subsequent carelessness. It is next alleged that the bell and speed ordinances pleaded are unreasonable, unconstitutional, null and void for reasons set forth.

The reply was conventional.

The record shows that plaintiff did not put his case to the jury on his first two specifications of negligence. He stood on the last, seeking recovery solely on the theory that defendant’s servants either saw him in peril, or should have seen him in time to save him by using ordinary care. In this condition of things the elaborate brief of defendant’s counsel on the unreasonableness and nneonstitntionality of the two ordinances pleaded is waste labor for the purposes of determining germane and live assignments of error. Accordingly we put those questions away from ns.

Defendant introduced no testimony. At the close of its adversary’s case it offered an instruction in the nature of a demurrer to the testimony. Saving an exception to the refusal of that instruction, it now presses the point as decisive of the case.

In our opinion that assignment of error is well made, because:

Attending to the facts, there follows a crude freehand drawing compiled from an elaborate map introduced by plaintiff and produced here for our inspection. The sketch is not drawn to a scale, but will assist in describing the locus in quo and throwing light on the facts, viz.:

The scene is laid in South St. Joseph. BA is a segment of Michigan street running practically east and west. Its western terminus is at B. From that point it extends east, cutting Lake avenue at right angles. Let ED represent a segment of Ohio street. It runs parallel with Michigan and four hundred feet to the south. Let DA represent a north and south street, Lake avenue, it being a main thoroughfare in that vicinity. The area bounded by Michigan and Ohio streets and lying west of Lake is mostly vacant property and we will call it the “block.” North of Michigan are horse and mule barns. South of Ohio are vacant lots. Southeast of the block and some distance away is a settlement called in the record, with a touch of humorous sarcasm, “Skeeterville.” Plaintiff lived southeast of the block on Kentucky street, some two or three blocks away. West of the block is no street. Here there are a group of railroad tracks running north and south, one of them is represented by the line REBS; another, by the line TXY; and still others west of these are not shown on the diagram. On the map put in evidence the line REBS is green and the witnesses call it the green track. This green track belongs to the Rock Island and on it (under some running arrangement) Santa Fe and Missouri Pacific trains come into and leave St. Joseph to the south. About eleven hundred feet north of B there was a depot, not shown on the diagram. The railroad shown by the line TXY belongs to the C. B. & Q., as did the other tracks and switch tracks west. These railroad tracks and intervening strips of land constitute practically a railroad yard of considerable width. West of them and extending on north were divers packing house establishments and grounds. The C. B'. & Q. track shown on the diagram is fourteen feet west of the green track. There were access to and egress from these packing house plants over open streets for the accommodation of residents southeast by their coming to Lake, going north to Illinois avenne (an east-and-west street not shown on the diagram) and then going west and getting into the packing house grounds through other streets not shown on the diagram. But that ,was a round-about way. The ways generally used were by the paths shown by the dotted lines on the diagram. One of these paths ran up the cul de sac, AB, and on west on the line of Michigan street if it were projected west. Another ran up the cul de sac, DE, and on west across the tracks in the line of Ohio street if it had been projected west. Another commenced at D and ran diagonally across the block to B. This was a broad and much used path and the main one. When travel reached the point B going west, on the line BXC across the tracks, it took that line. There are other paths in the vicinity, but they are immaterial here. Plaintiff is an Austrian Pole, twenty-eight years old, and at the time in hand was employed by the Swift Packing Company, whose plant was northwest of the locus in quo. He testified through an interpreter. On the day in question, at 5:30 p. m., he left Swift’s and went to the Hammond packing plant, due west of Michigan street, where he had formerly been employed, and from that point he undertook to go to his home, aiming towards the point B at the head of Michigan street. Somewhere on his journey and while among the railroad tracks he picked up a short tie for fuel. With that tie on his shoulder he crossed the C. B. & Q. track shown on the diagram at about X. At that time on that track there was a string of cars extending north from X to the depot north of X. There was also a string of a half dozen dead freight cars south of X. At X there was a decided break in the string of cars of six or seven feet, and plaintiff apparently crossed the C. B. & Q'. track through this break or gap. When he reached B, instead of going down Michigan street to A, or instead of traveling on the well-beaten diagonal path from B to D, it is claimed he wheeled to his right and took down the green railroad track intending apparently to go to E and thence down Ohio street to D. There is no donbt under the testimony but that at the point B, where the diagonal path joins the east-and-west path at the head of Michigan street, there was such continued and pronounced user shown by the public that defendant had a call to look out for pedestrians there. It had no right to expect a clear track at that point. But plaintiff was not hurt at that point. A Missouri Pacific train of fifteen freight cars, southbound on the green track and going rapidly, struck him a hundred or one hundred and seventy-five feet south of that point between B and E and broke his leg. Between these two points the green track is rough, the ties were about twenty inches apart, the space between them was ballasted with cinders and broken vitrified brickbats and this ballasting was not flush with the top of the ties. The record shows it was not an inviting place to walk and not the usual route for footmen. ' If there was any path on that track, it was dim. Some of plaintiff’s evidence was to the effect that but few persons pass along there. There was some other evidence that a good many people passed along there. At B and west of B there was a group of conspicuous danger signs on posts notifying the public it was private property, that there was no passway there and that there was danger. There was some little testimony that the employees .of the packing plants swarmed all over the grounds in going and.coming “like a flock of birds,” but, as said, the physical signs on the surface of the earth indicated that the lines of travel were in the dotted paths shown on the diagram, and there was little or no sign that the green track from B to E was used as a footpath to any such great extent as would give defendant notice that persons were to be expected there.

Absent a known user in the public of the green track of such sort as would cast the duty on the defendant to look out for persons, then, in order to hold defendant under the humanitarian doctrine, it was necessary for plaintiff to show that he was actually seen by defendant’s train servants on. the green track between B and E in time to have warned him and averted his injury by the use of ordinary care. Now, there is no testimony tending to show that plaintiff was actually seen in peril in time to have averted his injury by the use of ordinary care. So, if he recover at all he must recover on the theory the point where he was struck was a place that defendant should have anticipated the presence of people, whereby a duty was raised to look out for them. Plaintiff’s counsel plant their case on the theory that plaintiff came to B in his journey and then turned his back, as said, to the north and walked south between the rails on the green track for one hundred or one hundred and seventy-five feet and was struck at a place where the train crew owed a duty to look out for persons in peril. The testimony shows the track was level and unobstructed for a great distance, hence if the duty to look for plaintiff was present then the ability to see him. was also present during all the time he was walking that distance (if he did so walk) with the tie on his shoulder and his back to the oncoming train. So much is clear. If, now, the point was decisive of the case, it would be well worth while to determine, under the testimony we have outlined, whether in a railroad yard with a well-marked and well-known safe path elsewhere, long used by pedestrians having business at the packing houses, there was substantial evidence of such known, customary and continuous user of the green track between Michigan and Ohio street as raised a duty to look for persons on that track. In this case the testimony of such user at best is conflicting, faint and unsatisfactory. But as the case breaks on another point, we may, arguendo, allow to plaintiff as the most advantageous view possible to him that there was some testimony on which the issue of fact, viz., whether the green track from E to B was a place where defendant’s servants should have anticipated the presence of persons, could go to the jury. '

In that view of it, the remaining vital question is this: Was there substantial evidence that plaintiff got on the green track at B and walked south on that track in danger for, say, one hundred or one hundred and seventy-five feet?

Such question seeks a closer view of the testimony. As we see it, plaintiff, who knew better than any body else where he walked, does not so testify. On the contrary, over and over again in answer to leading and suggestive questions he refused to state it that way. The just sum of his testimony was that he was in the act of crossing the track and was struck in crossing as he got to the center of it. The questions propounded to him by his learned counsel show beyond cavil that they were dissatisfied with his answers and were allowed by the court to go to a great length in rectifying that damaging admission. But time after time he reasserted that he just got on the track and was crossing it — for instance, at one place the record shows this:

“A. (Indicating) There he come right across, right along here, saw car standing; somewheres along here saw car standing; he just crossed these tracks when he was struck.
“Q. After he had crossed the tracks there at Michigan street, then which way did he go? A. He says he walked across these tracks; until he didn’t see no train only that ear, until it struck him there.
“Q. Where did he go after he got across the tracks? A. He says he didn’t go nowheres — no-wheres — the train just struck him.
“Q. Where was he when the train struck him? A. When he crossed over here, the train'hit him .and he just fell over and that the last he remembers.”

After so testifying, in response to a leading question, he said he was walking down the track. But speedily he returned to his first story and stuck to it to the end. Witness the following:

“Q. After the train struck him — how far he had got on the track before he was hit? ■ A. He fell right there when the train struck him.
“Q. If he was struck when he first stepped on the track? A. He was right in the center; he fell to his left.
' “Q. How long had he been on the track before he was struck? A. He don’t know (how) long.
“Q. How long he had been — he knows, before he was struck; he knows how long after he walked on the path of the railroad track; how long he had been there before he was struck? A. He was not on the track at all; he just cross the track to look up the street and he got struck.
“Q. Just as he went on the track? A. Yes, sir.”

Finally his counsel took him in hand again with the following result:

“Q. How far did he walk down the track before he was hurt? A. He didn’t walk down the track at all.
“Q. "Where was he when he was hurt? A. He don’t remember a thing after he cross the track?
“Q. After he crossed to the track; after he crossed the track there that day with the tie on his shoulder? A. He says he didn’t cross the track at all; it struck just as he got on the track.
“Q. "Well, did he cross these tracks from the packing houses to go on the track?
“The Court: The track west of the one that he was walking on. A. Yes, sir.
“Mr. Allen:
“Q. "Where was he walking at the time he was hit; on the track or off the track or where? A. Jnst crossing the track when the train struck him.
“Q. If he was walking across the track or by the track? A. He said crossing the track.
“Q. At the time he was hurt, was he walking across the track or up and down the track?
“Mr. Woodson: That is objected to as leading.
1 ‘ A. Just across the track. ’ ’

When the foregoing testimony is supplemented by the fact that plaintiff testified that when he attempted to cross the track he looked for a train and saw none and heard no bell or warning, we have the whole case outlined by plaintiff himself.

To further sustain the issues on his behalf, plaintiff placed on the stand three putative eye-witnesses, each of whom saw something of the accident. One of these was a boy who was playing with his companion, “monkeying around” as he expressed it, some distance west of the dead cars on the O. B. & Q track, and, as we make out, somewhere near in the line of Michigan street if it had been opened west across the tracks. This witness apparently undertook to testify that plaintiff walked on the track from B to where he was struck, yet the upshot of it all finally was that he admitted (as was the patent and physical fact) that he could not see plaintiff because of the string of dead cars between him and plaintiff on the C. B. & Q. track. He saw him just as his tie flew in the air and as he was about to appear in his line of vision at the south end of the dead freight cars. Manifestly his testimony that he walked down the track was a mere conclusion of his own. A careful examination of the record results in the foregoing view of it. The companion of this boy was also a witness and his testimony rightly understood is to the same effect. The train hitting plaintiff had come from the depot up north. One of these boys says it was running pretty fast and whistled about the time it hit him, that he heard it whistle after it left the station and that he “didn’t pay any attention” to its whistling and heard no bell ring. When asked whether plaintiff was walking on or off the track, he said he didn’t see him, “but he must of been on it.” The other boy said the train whistled “just a little this side of the crossing, Michigan street . . . towards the depot,” and he heard no bell. This witness estimated that the train whistled seventy-five yards from plaintiff. The other witness was Cummings. He was going east from the Hammond packing plant, following plaintiff at some distance behind, and also heading for the gap, X. As he approached this gap he heard the whistle of the south-bound freight train on the green track, and, to beat the train over the crossing, broke into a run through the gap and across the green track. He had heard the train whistle “this side of the station.” When it passed the point B’, witness had reached the east side of the green track. ' Further questioned about the whistle he said it whistled south of the depot and at that time witness was “pretty near across the track” and running to get ahead of it. The train, he says, was then pretty close. When witness noticed plaintiff on the track he was on the track one hundred and seventy-five feet south.

It will be observed that-none of these witnesses' testify they saw plaintiff walk on the track from B south to where he was struck. While the testimony is a little obscure, yet it is not inconsistent with the testimony of plaintiff himself, to the effect that he had just got on the track at the time he was struck and was crossing it.

On such a record it must be held there was no case for the jury. Because:

(a) In the law of negligence a railroad track in and of itself is an unequivocal and large sign of clanger. It stands there mutely but unmistakably crying aloud, “Danger!” It is much the same as if one stood there and with a trumpet called out, “Beware!” “Look out for the cars!” “Listen for the cars!” “Look out for yourself!” “Look well to what you are about to do for you are taking your life in your hands!” “Use your eyes!” “Use your ears!” “Use your common sense!” Accordingly, as a general rule, in the administration of justice in this kind of casé, a person in the act of crossing such track must before entering on' it look and listen. If he does not and is injured in crossing he is guilty of negligence, he contributes to his own injury and is hurt by his own fault. In such case, the best the law can do is to leave him where he puts himself; for no action lies. Moreover, given daylight and no obstructions, given a situation where to look is to see, then such person is conclusively held to see; for on that hypothesis looking is equivalent to seeing. Hence, for one to say (as plaintiff does) that he did not see an engine bearing down upon him and so close to him as to strike him as he crossed the track, is precisely the same as if he had .said he did not look at all. No judgment should stand on an impossibility; for example, on the fact that one saw around a corner with a naked eye, or through a solid stone wall, or in broad day looked and did not see a locomotive engine hard by on a straight and unobstructed track.

Under the doctrine of many cases plaintiff’s own testimony put him in the fix of a man who negligently moves from a place of safety beside the track to a place of danger from a going locomotive on a track, and immediately before it. In that view of it there is no room to apply the last clear chance or humanity rule. Contra plaintiff’s negligence is the proximate cause of his injury. [Green v. Railroad, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215; Mockowik v. Railroad, 196 Mo. l. c. 570 and cases cited; Eppstein v. Railroad, 198 Mo. l. c. 733; Stotler v. Railroad, 204 Mo. 619; Laun v. Railroad, 216 Mo. 563.]

(b) Nor, as pointed out in the statement of facts, did plaintiff’s eye-witnesses testify to facts which carried the case to the jury, even if we ignored the testimony of plaintiff himself. Conceding that one or more of them saw plaintiff on the track one hundred or more feet south of B, yet they testified to things making it impossible for them to have seen him walking on the track from B to the point of collision. They could not see through the line of dead freight cars. That he was on the track when struck or so close to it as to be in danger is self-evident from the sequel. The jury knew so much as that from the fact he was struck there. But the question remains: Did he walk there one hundred or more feet? The laboring oar was held by plaintiff on that0 question in order to bring in play the humanity rule, That track was rough, at best it was an uninviting place to travel for a. man bearing a burden on his shoulder. It was not the customary way of traveling. To travel in a railroad yard for that distance, on a live track, without looking behind and with a burden on his back, was a highly imprudent and foolhardy thing; therefore, because of the natural instinct of love of life, there could no presumption arise that one would do such a thing. If any presumption be indulged, it would be that he walked in safety outside the track until he undertook to cross it. Therefore, whether it was done or not done would depend on proof. As we see it, there is no substantial proof to that effect. It results that the judgment should be reversed. It is so ordered,

All concur.