author: "WOODSON, J.

text:
    MARTHA E. KIRKPATRICK et al. v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Division One,
    April 1, 1908.
    1. NAME: Misspelled by Stenographer: Evidence. Plaintiff offered in evidence defendant’s answer in a suit brought in another court against the same defendant by W. B. Reaburn, who was the conductor in charge of the car at the time of the accident out of which both suits grew. In this suit one of defendant’s witnesses testified that W. B. Rayborn was the conductor in charge of the car, and another that Rayborn was, and there was no pretense when the answer was offered in evidence that the plaintiff’s name therein was not the conductor who had charge of the car. Held, that the fact that the stenographer in transcribing the testimony spelled the name Rayborn instead of Reaburn did not of itself show that Rayborn was the conductor and that Reaburn was .not, nor render the answer Incompetent as evidence, but the testimony was sufficient to show, in both suits, that Reaburn was the conductor in charge of the car.
    2. EVIDENCE: Petition and Answer in Another Suit: Competency. The conductor in charge of the car which was derailed brought a suit in another court against the defendant in this, and the defendant filed an answer in that in which it charged that the conductor was running the car at a dangerous rate of speed, in violation of the company’s rules, and in this suit the plaintiff, who was injured in the same accident, introduced in evidence both the petition and answer in that. Held, that the petition was competent, not for the purpose of proving the truthfulness of the facts therein stated, but for the purpose of making the answer intelligible, and to explain the scope and meaning of the charges regarding the derailment and the causes thereof set up by defendant in its answer in that suit; but the instructions, in such case, should tell the jury -that nothing stated in said petition is any proof whatever of the truth of the facts therein stated.

      3. -: -: -: Instruction. The instruction told the jury that the petition, in the other case “is to be considered by you only as far as its allegations explain the allegations contained in defendant’s answer to said petition” in that suit. Held, that the instruction might have been more specific, but is not reversible error.
    4. -: -: In Another Court and State. An answer filed by defendant, in regard to the accident in suit, containing certain written admissions against the interests of the defendant, is competent evidence, although it was filed in another court and in another State. The law presumes the written admissions contained therein to be true, because against defendant’s interest.
    5. -: -: -: Written Admissions: Place and Manner. The place and manner of making written admissions against interest have nothing to do with their admissibility as evidence, but they often do affect the weight to be given to them, and when they are contained in a formal answer filed in a court of justice they are entitled to great weight.
    6. -: -: Competent for One Purpose: Instruction for Another. The fact that the court stated that pleadings in another case growing out of the same accident were competent “to fix the date of the accidént” in no manner restricted the power of the court to instruct the jury that they were also admissible as admissions, if they were admissions.
    7. --: Photographs. Photographs showing the condition of the trestle, track and derailed car at the point of the accident, taken soon after it occurred, and shown to be correct representations of the conditions as they existed, are competent evidence.
    S. NEGLIGENCE: Specific Acts: Proof of Others: Roadbed: Instructions. Whenever the petition alleges specific acts of negligence which caused the injury to the passenger he cannot prove other acts which caused or contributed to the injury. Where the petition specifically alleges “that the ties upon which said track was laid were old and rotten, that the rails were not properly connected together at the joints, so that said rails did not meet at the joints and form a continuous rail, also said track was rough and uneven,” that said car was going at a high rate of speed, and that “owing to said defects in said track said car left said track,” and in consequence plaintiff was injured, it is error to give instructions which tell the jurj that it was defendant’s duty to use such care, diligence and foresight as capable railroad men, etc., would take “to keep its track and roadbed in a reasonably safe condition for running cars over it,” since said instructions submit to tbe jury an issue not eon- . tained in the petition, namely, the condition of the roadbed where the accident occurred.
    9. -: General and Specific: Allegation and Proof. Where the plaintiff was a passenger and the defendant a common carrier, it is unnecessary to charge specific acts of negligence. If the petition charges negligence' in general terms, then proof that defendant was a common carrier, that plaintiff was a passenger, that the car was derailed and in consequence she was injured, makes out a prima-facie case, since the law in such cases presumes that the injury was the result of the carrier’s negligence and casts on him the burden of proving he was not negligent. But where the petition alleges specific acts of negligence, the plaintiff is presumed to have knowledge of those acts, and must prove them and them alone, and a failure to prove them, or the giving of an instruction which authorizes the jury to find defendant guilty of other acts not charged, is error.
    10. -: -: Burden: Instruction. Where the passenger charges specific acts of negligence, an instruction which imposes upon the defendant the burden of proving it was not guilty of these acts, is error.
    11. -: Passenger: Degree of Care. An instruction for the plaintiff passenger which tells the jury that it was the street railway company’s duty to use the utmost care, diligence and foresight which capable and faithful railroad men would use under like circumstances, correctly declares the degree of care which the law imposes upon a common carrier.
    12. -: -: -. Instructions asked by defendant and set out in the statement were properly refused, since the law imposes a higher degree of care upon a common carrier than that 'Stated in them.
    Appeal from Jackson Circuit Court.— Hon. W. B. Teasdale, Judge.
    Reversed and remanded.

      John H. Lucas, Ben T. Hardin and Ben F. White for appellant.
    (1) Tke court erred in the admission in evidence, on the part of plaintiff, of the petition, answer and amended answer of W. B. Reaburn v. this defendant and J. M. Capps: (a) There was no proof that the plaintiff in the Reabnrn ease was the conductor on the car which was derailed, and in which respondent was a passenger, (b) The petition in the Reaburn case could not possibly have been competent for any purpose, since it in no way bound the defendant, (c) The answer and amended answer were incompetent for the reason that they were not only filed in another case, but even in another court, and, in fact, in another State, (d) Although the court permitted these pleadings in evidence for a single purpose, to fix the date of the accident, their use by the jury was not confined to any such purpose in the instructions, but, on the contrary, were used as an admission of a damaging fact, and even that fact was assumed in the instruction. (2) The court erred in giving instructions 1 and 2 for the plaintiff. They both introduced an issue not made by the petition, to-wit: the condition of the roadbed. . Having alleged exactly what caused the derailment plaintiff is bound by that allegation, and cannot enlarge’ upon it in the instructions, nor shift the burden of proof to the defendant. Roscoe v. Railroad, 292 Mo. 576; Oreutt v. Century Building Co., 201 Mo. 424; McGrath v. Railroad, 197 Mo. 97; Hamilton v. Railroad, 114 Mo. App. 509; Gayle v. Mo. Car & Foundry Co., 177 Mo. 450; Heinzle v. Railroad, 182 Mo. 528; McClure v. Feldman, 184 Mo. 710. (3) The court erred in refusing to give defendant’s instructions numbered 7, 8, 9 and 13. The refusal, especially of number 13, and the giving of plaintiff’s number 1, on the degree of care required of defendant, shows that the trial court held the defendant to a higher degree of care than that imposed by the law of Missouri — “the utmost care and diligence.” Dougherty v. Railroad, 97 Mo. 667; Schepers v. Railroad, 326 Mo. 671.

      L. A. Laughlin for respondents.
    (1) Without the petition being in evidence, the answers of defendant would be wholly meaningless. The time and place of the accident, in fact, all the information necessary to show that the answers related to a suit similar to the one on trial, were contained in the petition. With the cautionary instruction, defendant could not possibly'have been prejudiced by the reading of the petition in evidence. (2) The admissions of the defendant made in a solemn manner in another judicial proceeding are competent evidence against it. Dowzelot v. Rawling, 58 Mo. 75; Anderson v. McPike, 86 Mo. 298; Sanford v. Railroad, 40 Mo. App. 15; Bowman v. Globe S. H. Co., 80’ Mo. App. 628. The court admitted the answers in evidence because they contained admissions against the interest of the defendant. If they did not contain such admissions, they would not have been admitted, as that is the only theory upon which the court could have acted. It was proper for the court to assume that such admissions were in the answers. The court did not say that the pleadings were admitted for a single purpose to fix the date of the accident. The court said that the petition was admitted only for the purpose of identifying the time of the accident. (3) Defendant criticises plaintiff’s instructions numbers 1 and 2 because they use the word “roadbed,” and says no such word is used in the petition. While that is true, yet the defects alleged certainly pertained to the roadbed. But there can be no question that instruction 2 confined the attention of the jury to the exact defects pleaded in the petition. After specifying the defects as pleaded, it uses the language “a reasonably safe track and roadbed, in the particulars above set forth. ” If the particulars above set forth ’ ’ did not pertain to the roadbed as defendant claims, certainly no harm was done. The criticism that the burden of proof is placed on the defendant to show that the derailment was not due to its negligence in providing a reasonably safe track and roadbed in the particulars specified, is without merit. Carriers of passengers are not insurers of their safety and are not responsible where all reasonable care, skill, diligence, prudence and foresight have been employed. Sawyer v. Railroad, 37 Mo. 240. The instruction tells the jury, in effect, that though they may find that certain defects existed in the track and roadbed and that the car was derailed because of them, yet if the defendant could prove to the satisfaction of the jury that the derailment was not caused by any neglect on its part in providing and maintaining a reasonably safe track and roadbed, plaintiff could not recover. This is a correct statement of the law. If this was omitted from the instruction, it would be erroneous, as it would make the defendant liable as an insurer. The instruction simply tells the jury the means the defendant may employ to excuse itself and directs what evidence the jury may consider in determining whether the defendant was without fault. Such an instruction is proper. Feary v. Railroad, 162 Mo. 90.
   "WOODSON, J.

— This suit was begun in the circuit court of Jackson county by the respondent against the appellant to recover the sum of $5,000' damages, as compensation for injuries sustained by her through the alleged negligence of the latter.

The appellant was a common carrier, and respondent was a passenger upon one of its cars at the time the injuries were received.

Plaintiff pleaded specific acts of negligence, and the allegation is as follows:

“(2). That at a point just east of the intersection of Haskell Avenue with Sherman street, said railway is elevated upon a high trestle; that for a long time prior to said date the track west of said Sherman street and across said Sherman street was in a dangerous and defective condition in this: that the ties upon which said track was laid were old and rotten, that the rails were not properly connected together at the joints, so that said, rails did not meet at the joints and form a continuous rail, also said trapk was rough and uneven. That on said date said car in which plaintiff was riding was going at a high rate of speed across said Sherman street and towards said trestle, when, owing to said defects in said track, said car left said track near the west side of said Sherman street and ran along the ties and onto said trestle for some distance, and then fell off said trestle to the ground below, a distance of about twelve feet.”

The answer was a general denial.

Th e facts disclosed by the record are substantially as follows:

The defendant, Metropolitan Street Railway Company, owns and operates what is known as the West Side Line in Kansas City, Kansas. This line runs along Haskell avenue, which is a highway running east and west. Sherman street crosses Haskell avenue at right angles and, just east of the intersection, the street railroad runs on a trestle twenty or twenty-five feet high for a considerable distance. The trestle begins within twenty-five feet of the east line of Sherman street, and going west from Sherman street the street railway tracks are on an ascending grade for half a block.

Plaintiff lived with her husband at Third and Garfield streets, in Kansas City, Kansas. On the morning of January 8, 1904, plaintiff left her home and went to visit a married son who lived- at No. 2726 North Eighth street, near the end of the West Side Line. She remained there until about five o’clock in the afternoon, when she started for her home. She took a car on the West Side Line. There were two or three passengers on the car and. W. B. Reaburn was the conductor and Mike Gallivan was the motorman. As the car was approaching Sherman street it was running fast down grade, and as it reached a point about forty feet from the trestle the car jumped the track at a joint in the rails and ran along the ties onto the trestle. At a point where the trestle was about twelve feet above the ground below, the car fell off the trestle to the ground, striking on its side.

Mrs. Kirkpatrick was severely injured. Her skull was fractured; her shoulder was broken, causing a permanent disability, and obliging her to keep her arm in a harness ever since; her coccyx bone was also broken and she was confined to her home for months.

There was abundant testimony given by.plaintiff’s witnesses that the print of the wheels in the ground showed that the car left the track at a joint where the end of the east rail was an inch and a half lower than the end of the west rail. The track was laid on concrete pillars sunk into the ground. There were iron tie rods as well as wooden tie braces extending from one rail to the . other.

The conductor, W. B. Reaburn, brought a suit for his injuries against defendant in the district court of Wyandotte county, Kansas. La that suit defendant filed an answer setting up that defendant’s division superintendent, A. C. Bullock, for some months prior to the accident had forbidden any car to run at a rate of speed exceeding five miles an hour; that the car was running ten miles an hour and that it was dangerous to run a car at so high a rate of speed as ten miles an hour at the place where the accident occurred. The pleadings in the Reaburn case were offered in evidence. The admission of this evidence is assigned by defendant as error.

At the request of respondent, and over the objections of the appellant, the court gave, among others, the following instructions; and to the action of the court in giving them the appellant duly saved its exceptions, to-wit:

“1. The court instructs the jury that it was the duty of defendant to use the utmost care, diligence and foresight, which capable and faithful (railroad-men would take, under like circumstances, to keep its track and roadbed in a reasonably safe condition for the running of cars over it.

“2. The court instructs the jury that if you believe from the evidence that, while plaintiff, Martha E. Kirkpatrick, was a passenger in a car running on defendant’s railway, said car was derailed, owing to the fact that the rails were not properly connected together at the joints, so that said rails did not meet at the joints and form a continuous rail, and also said track was rough and uneven, and that said car while derailed ran off from a trestle and injured said plaintiff, then it devolves upon the defendant to prove to the satisfaction of the jury that such derailment of said car was not caused by any fault, negligence or carelessness on its part in providing and maintaining a reasonably safe track and roadbed, in the particulars above set forth, over which to run the same, and unless it is so shown, your verdict should be for the plaintiff.

“5. The court instructs the jury that the petition offered in evidence in the case of W. B. Reaburn, plaintiff, against the Metropolitan Street Ráilway Company, defendant, in the district court of Wyandotte county, Kansas, is to be considered by you only so far as its allegations explain the allegations contained in the answers to said petition offered in evidence. Any allegations contained in said petition as to the speed of the car or the condition of the track at the time and place of the accident are not to be regarded by yon as evidence of those facts. With regard to the answers to said petition offered in evidence, you are instructed that any allegations contained in said answers as to the speed of the' car at the time and place of the accident and against the interest of the defendant in this case are to be taken in connection with all the other evidence in the case; you may treat them as true or false, just as you believe them to be true or false, when considered with a view to all the other facts and circumstances in the case.”

At the request of the appellant, the court gave certain instructions, and refused the following, to which action of the court in so refusing appellant duly saved its exceptions, to-wit:

“7. A carrier of passengers is not obliged to foresee and provide against casualties which have not been known to occur before, and which may not reasonably be expected; and if such carrier has availed himself of the best known and most extensively used safeguards against danger, he has done all the law requires, and his liability is not to be ascertained by what appears for the first time after the disaster to be a proper precaution against its occurrence. • And where an appliance or structure, not obviously defective or insufficient, has been in daily use for years, and has uniformly proved adequate, safe and sufficient, it may be continued without imputation of negligence.

“8. The duty imposed upon the defendant did not require it to use every possible means and precaution to prevent an accident or avoid an injury to its passengers, nor any particular means which it may appear after the accident would have prevented or avoided it; the defendant, its agents, servants and employees, in the management and operation of defendant’s cars, were, by the law, required to exercise only such care and prudence as was reasonably practicable; and no liability can attach to the defendant in this case, if such care was used by it, and by the exercise of such care the accident complained of could not have been foreseen or reasonably anticipated or expected. If the plaintiff received her injuries as the result of an accident, which reasonably careful and prudent men in the same situation as defendant’s servants were at the time, and exercising* such care as was reasonably practicable, could not have foreseen nor reasonably anticipated, then the plaintiff cannot recover, and your verdict must be for the defendant.

‘ ‘ 9. When something unusual occurs, but such unusual occurrence is not the result of' an unusual act of the defendant, and the defendant has, so far as he is concerned, been pursuing his usual course, which has heretofore been done in safety, then the unusual occurrence is what is called an accident. If plaintiff received her injuries as the result of some occurrence which careful and prudent men, in the situation of defendant’s agents, would not reasonably have anticipated or expected, then such occurrence is what, in law, is termed an accident, and the defendant is not liable for the resulting injury to' the plaintiff.

“13. You are further instructed that the defendant company was not an insurer of the safety of the plaintiff, nor was it required to exercise any degree of care or foresight that was not reasonably practicable. Therefore, you are instructed that the mere fact that an accident occurred and plaintiff was injured, if you believe she was, does not of itself entitle plaintiff to recover in this case; and if you believe from the evidence that defendant’s servants exercised all the care and prudence that were reasonably practicable under all the circumstances, and that the accident happened without negligence on their part, then the plaintiff cannot recover under any circumstances in this case, and your verdict must be for the defendant.”

The jury found the issues for the plaintiff, and assessed her damages at the sum of $5,000, and in due time and in proper manner the appellant appealed the cause to this court.

I. The first assignment of error presented by appellant for our consideration was the action of the court in admitting in evidence, on the part of the respondent, the petition and amended answer in the case of W. B. Reaburn v. the appellant, the Metropolitan Street Railway Company, which was pending in the district court of Wyandotte county, Kansas, wherein Reaburn, the conductor in charge of the car on which this respondent was injured, had sued the company for injuries received in this same accident. The action of the court in that regard is assailed for several reasons:

(a). That there was no testimony introduced which showed Reaburn, the plaintiff in that case, was the conductor in charge of the car in which respondent was a passenger, and on which she was injured.

Counsel for appellant is mistaken as to the fact in that regard. He has overlooked the following evidence :

Mr. M. J. Rooney, one of defendant’s witnesses, who was a motorman riding in the car on which the injury occurred, testified as follows:

“Q. What was the name of the conductor there on that train? A. I think it was Mr. Rayborn.

“Q. W. B. Rayborn? A. Yes, sir; I think so.”

And Mr. W. H. Patterson, another one of .defendant’s witnesses, testified as follows:

“Q. What was the name of the conductor of the car that went off the track? A. Rayhorn, I believe was his name.”

While it is true the stenographer in transcribing the testimony spelled the name ‘ ‘ Rayborn ’ ’ instead of Reabnrn, yet there was no pretense made at the trial when the answer was offered in evidence that the plaintiff named therein was not the conductor who had charge of the ear at the time the accident occurred, and that he was the person mentioned in the oral testimony.

(b). It is next contended by the appellant that the petition in the Reaburn case could not possibly have been competent for any purpose, since it in no way bound the defendant.

The learned counsel for appellant seems to misconceive the purpose the respondent had in view by offering the petition in that case as evidence in the case at bar. Her purpose was not to prove the truthfulness of the facts stated in the petition; but the purpose was to prove that defendant made certain written statements in its answer regarding the derailment of the ear and the cause thereof which resulted in her injuries. The answer of the company set up certain facts as a defense to the cause of action stated in Reaburn’s petition; among others, that Reaburn was negligently running said car at a rate of speed in excess of ten miles an hour, which was dangerous and in violation of orders given him by the superintendent of the company; and, in order to make the answer intelligible, it was necessary for the court and jury to know and understand the nature of the charges made in the petition. That knowledge could best be obtained by reading the petition itself, which contained the charges; and then, when, in the light of those charges, the answer is read, the matters to which it refers are pointed out, and the allegations of the answer are thereby made intelligible, which, if read alone, would be meaningless or misleading to the jury. The petition was- admissible for the purposes mentioned; but the object or purpose of the evidence should have been specifically limited by an instruction to that purpose only. [Stanard Milling Co. v. Railroad, 122 Mo. 277.]

■ The court by instruction No. 5, given for respondent, attempted to so limit the effect of the petition to the objects stated by the use of the following language: That the petition in the Reaburn case “is to be considered by you only as far as its allegations explain the allegations contained in the answer to said petition offered in evidence.”

The limitation of that evidence might have been more specific and less liable to mislead the jury had the court added to that instruction, that nothing stated in the petition was any evidence whatever of the truth of any of the facts stated therein, and that the jury should not consider it as evidence tending to prove any such fact therein stated. But, however that may be, we are not prepared to say the instruction was reversible error, given in the form above quoted.

(e). The appellant also insists that the petition and answer in the Reaburn case should have been excluded as evidence in this case, for the reason that they were not only filed, in another case, but even in another court, and, in fact, in another State.

This contention of appellant is unsound, for the reason the answer was admitted in evidence because it contained certain written admissions against the interest of the company, regarding this same accident, which the law presumes to be true because they are against its interest. [Dowzelot v. Rawlings, 58 Mo. 75; Anderson v. McPike, 86 Mo. 293.]

The place and manner of making the admission have nothing to do with the question of its admissibility. The place and manner of making the admission often does and should affect the weight to be given thereto, as is shown by what is known in the books as judicial and extra-judicial confessions and admissions. Tbe former having been made in solemn form, in a, court of justice constituting the foundation, or a part of the procedure, in causes pending, in which the rights of the parties are stated, and by which the courts are called upon to pass judgment, and upon which they must solemnly decree the rights of the parties, are for those reasons entitled to greater consideration and weight than when casually or incautiously made, at a time and place, and under circumstances not calculated or intended to affect the rights or interests of others, and, perhaps, unmindful of all the facts and circumstances of the ease. But these are matters for the jury and not for the court to consider.

(d). The fact that the court stated in its ruling that the pleadings in the Reaburn case were admissible for the purpose “to fix the date of the accident” in no mauner restricted the power or duty of the court to instruct the jury that they were also admissible as admissions, if they were admissions, of any other fact or facts involved in the issues presented by the pleadings.

II. The respondent introduced in evidence certain photographs, showing the condition of the trestle, track and car in question, taken shortly after the 'accident occurred, which the evidence showed were correct representations of the conditions as they then existed. The appellant objected to the introduction of those photographs.

There is no merit in this objection. In discussing the right to use photographs as evidence in a cause, Judge Valliant said: “These photographs testify to us how the sidewalk appeared at the time they were taken, the plaintiff testified that it appeared at the time of the accident as it appears in the photographs, but the photographs are silent on that point, and serve in that connection only as illustrations of the witness’s testimony. They are of the same character of evidence as diagrams and pictures drawn by hand; not necessarily carrying the same degree of probative force, but still of the same character; not in themselves evidence at all, but representing to the eye what the witness declares was the real appearance of the thing at the time he saw it.” [Baustian v. Young, 152 Mo. l. c. 323; Edge v. Railroad, 206 Mo. 471.]

III. It is next insisted by the appellant that the court erred in giving instructions one and two for the respondent, for the reason stated, that both of them introduced and submitted to the jury an issue not stated in the petition, to-wit, the condition of the roadbed where the accident occurred.

The petition alleged specifically “that the ties upon which said track was laid were old and rotten, that the rails were not properly connected together at the joints, so that said rails did not meet at the joints and form a continuous rail, also said track was rough and uneven,” and that said car was going at a high rate of speed, and that “owing to s'aid defects in said track said car left said track,” etc., and in consequence thereof she was injured. It is thus seen that no complaint is made in the petition against the condition of the roadbed, while both of said instructions tell the jury that it was the duty of the appellant to use the utmost care, diligence and foresight which capable and faithful railroad men would take under like circumstances to keep its track and roadbed in a reasonably safe condition for the running of cars over it.

The law is well settled, at least in this State, that whenever the petition alleges specific acts of negligence which caused the injury to the passenger, then he has no right to prove other acts of negligence which caused or contributed to the injury. That question has many times been before this court, and some of the most recent cases have announced the rule as above stated. [Roscoe v. Railroad, 202 Mo. 576; Orcutt v. Century Bldg. Co., 201 Mo. 424; McGrath v. Railroad, 197 Mo. 97; Gayle v. Mo. Car & Foundry Co., 177 Mo. l. c. 450.]

Counsel for respondent does not .controvert the rule as above stated but seeks to escape the effect thereof by contending that the petition would have been good had it charged negligence only in general terms, and having gone further and unnecessarily charged specific acts of negligence, that those acts may be treated as surplusage, and a recovery had by simply proving that the defendant was a common carrier, that plaintiff was a passenger on one of its cars, that the car was derailed, and that in consequence of the derailment she was injured. If the petition had charged negligence in general terms, then unquestionably proof of the facts above mentioned would have made out a prima-facie case for plaintiff; but since the petition alleges the specific acts of ’ negligence which caused the injury,, the law will not permit her to treat that allegation as surplusage. The reason for that difference is this: That where a passenger is injured by the carrier while being carried, the law presumes the injury was the result of the carrier’s negligence, and easts upon him the burden of proving he was not negligent. This is done for the reason that the cars and other means of transportation are under his care and control, and thereby having peculiar knowledge of their movements and operations, he is presumed to know what was the cause of the injury complained of; while, upon the other hand, the passenger has no such care, control or knowledge of the operation of the cars and other means of transportation, and for those correlative reasons the law presumes the injury was caused by acts not known to the passenger, and for that reason it would be difficult, if not impossible, for him to prove the cause, and, for these additional reasons, the law presumes the cause was the result of the negligence of the carrier, and that presumption will warrant a finding for plaintiff without the defendant establishes the fact that the injury was due to some cause for which he was not liable. But, if, upon the other hand, the plaintiff has knowledge of the facts which caused his injury and states those facts in his petition as the facts com stituting his cause of action, then there is no necessity for calling into requisition the rule which indulges in the presumption that the carrier possesses knowledge of the facts which caused the injury, and that the passenger has no such knowledge; and whenever the reason for the rule ceases to exist, then the rule itself becomes inoperative. [Klebe v. Parker Distilling Co., 207 Mo. 480.]

And the respondent having alleged the specific acts of negligence which caused her injury, she must either prove the injury was caused as alleged or go out of court. [Beave v. Railroad, 212 Mo. 331.]

In the case last cited, this same question was fully discussed, and the reason for the rule was fully considered, and it would serve no useful purpose to prolong this discussion of that question.

Counsel for respondent also attempts to escape the effects of the rules above mentioned by contending that the evils pointed out are cured hy instruction two, given at his instance, which tells the jury that even though they might find that certain defects existed in the track and roadbed, and that the car was derailed on that account, and that in consequence thereof plaintiff was injured, yet if the defendant could prove to the satisfaction of the jury that the derailment was not caused by any neglect on its part in providing and maintaining reasonably safe track and roadbed, plaintiff conld not recover.

This contention of respondent is equally untenable, for two reasons: first, because it is but a restatement in another form of the proposition previously disposed of, for the reason that said instruction also ignores the rule of evidence which requires the specific acts of negligence pleaded to be proven as alleged, and none other; and, second, because this instruction casts the burden of proof upon the defendant to prove it was not guilty of negligence as charged. in the petition. This is clearly error, for the reason that the burden of proving negligence rests upon the party who alleges it, with the sole exception that where the passenger is injured by the carrier while being carried he may sue for those injuries and allege general negligence, and recovery may be had by proving he was a passenger and that he was injured by the carrier while being carried without offering any testimony tending to prove negligence. But, as before stated, if the pleader does not follow the rule of pleading last stated, but alleges the specific acts which constitute the negligence complained of, then the burden of proof rests upon the plaintiff to prove the negligence as charged, notwithstanding the fact he was a passenger and was injured while being carried.

In the case at bar, the plaintiff having stated the specific acts of negligence which caused her injury, the burden of proving those specific acts rested upon her, and instruction two given in her behalf erroneously-imposed that burden upon the appellant. [Klebe v. Parker Distilling Co., supra; Beave v. Railroad, supra.]

IV. Appellant complains of the action of the court in giving instruction number 1 for respondent. It told the jury the degree of care the appellant owed the respondent, which appellant contends is greater than the law imposes upon it. The instruction in effect told the jury that it was the defendant’s duty to use the utmost care, diligence and foresight which capable and faithful railroad men would use under like circumstances.

The instruction properly told the jury the degree of care appellant owed to the respondent. The law declared therein has been many times announced by this court, as will be seen by consulting the following cases: Lemon v. Chanslor, 68 Mo. l. c. 356; Jackson v. Railroad, 118 Mo. l. c. 224; Smith v. Railroad, 108 Mo. l. c. 249; Clark v. Railroad, 127 Mo. l. c. 208; Devoy v. Railroad, 192 Mo. l. c. 209; Fullerton v. Railroad, 84 Mo. App. l. c. 502.

V. It is finally contended that the court erred in refusing instructions numbered 7, 8, 9, and 13 asked by it. These instructions are intended as counterparts of instruction number one given for respondent, which we have considered in paragraph four of this opinion. These instructions place a less degree of care upon the appellant than that required by said instruction given for the respondent. The law imposes a higher degree of care upon a carrier than that stated in these instructions, and they were for that reason properly refused.

Appellant presents some other minor points for our consideration, but, after a careful consideration, we are of the opinion that they are devoid of merit.

Because of the errors pointed out in paragraph three of this opinion, the judgment is reversed and the cause remanded.

• All concur.


source: Caselaw Access Project

author: YALLIANT, P. J.

license: Public Domain

text:
    LEMUEL P. BERRY, by Next Friend, Appellant, v. ST. LOUIS TRANSIT COMPANY and UNITED RAILWAYS COMPANY.
    Division One,
    April 1, 1908.
    1. DEMURRER: Defendant: No Interest in Railroad. Where plaintiff sued two street railway companies for personal injuries charged to be due to defendants’ negligence in operating a street car, and there is no evidence tending to show that one of them had any interest in the railroad or its operation, a demurrer to the evidence as to it should be sustained.
    '2. STREET CARS: Carriers of Freight. A street car is designed to carry passengers, not freight. And although passengers frequently carry packages in their hands, that is a mere incident, it is not the purpose for which the car is operated.
    3. NEGLIGENCE: Signal: Stopping Car: Inference. Where hoys standing near a street railway track signaled for a car to stop and it did stop in obedience to the signal, the inference to be drawn in passing upon a demurrer to the evidence is that the conductor and motorman saw the boys and saw their signal.
    4. -: -: ’Passengers: Carrying Letter-Press: Starting Car. Even though the conductor was unwilling for the boys, who had signaled the car to stop and in obedience to whose signal it had stopped, to load a letter-press on his car or on its platform, still, if he recognized that their action indicated that they intended to board his car as passengers, and to carry the press as a hand parcel, he should have forbidden them to put it on, and their attempt to put it on did not justify him in starting the ear without warning and without regard to consequences to them. And the fact that the conductor-of the next car allowed the boys to put the letter-press on his car and to be carried with 'them, and when they transferred to another car its conductor allowed the same act, shows that it was not such an unreasonable burden as to justify the inference that their effort to put it upon the car’s platform did not give notice of their purpose to take passage on the car.
    5. -; --: -: -; -: Demurrer to Evidence. Plaintiff, a boy about twelve years old, and two other boys, having a letter-press, signaled the car to stop as it turned a corner, and in obedience to the signal it stopped, the conductor being in the front end of the car. Immediately one of the boys mounted the platform, and the plaintiff and the other boy, standing on the ground, lifted the press partly to the platform, and while they were pushing it and before it was on, the conductor' rang the bell, the car started, and the press fell off and striking •plaintiff injured him. Held, that the natural inference to be drawn from the act of the plaintiff was that he intended and was attempting to become a passenger on the car, that the conductor saw him, saw what he was doing, and knew his purpose, and under the circumstances the plaintiff was entitled to the care that a carrier owes a passenger, ana as the inference that might rairly be drawn, in the absence of any other testimony, is. that it was the starting of the car, without warning or protest, before the plaintiff had accomplished the act of putting the letter-press on the platform, that caused the accident, the court erred in sustaining a demurrer to the evidence.
    Appeal from St. Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge.
    Reversed and remanded.

      B. P. do G. B. Williams for appellant.
    (1) The right of a person to carriage as a passenger on a street car rests on a contract, the essential ingredients of which are, that the person must signify his intention to take passage, either by words or conduct, and the car-men must assent, by words or conduct, to his becoming a passenger. Ornara v. Railroad, 102 Mo. App. 202; Schepers v. Railroad, 126 Mo. 665; Farley v. Railroad, 108 Fed. 14; Railroad v. O’Keefe, 168 111. 115. (2) It is not necessary to the status of a passenger that a person be actually on the car, but he is entitled to the privilege of this status while attempting to get on, if the car has been stopped by those in charge for the purpose of receiving him or any one desiring to take passage. Ornara v. Railroad, 102 Mo. App. 202; Murphy v. Railroad, 45 Mo. App. 342; Schepers v. Railroad, 126 Mo. 665; Cleveland v. New Jersey Steam Boat Co., 68 N. Y. 306; Smith v. Railroad, 36 Minn. 1. (3) It was the duty of the conductor in charge of the car, after the same had stopped for the purpose of receiving passengers, to see and know that plaintiff was safely aboard, before starting the car; and it is no excuse that he stood in a part of the car where he was unable to see whether, all persons had gotten aboard. Nelson v. Railroad, 113 Mo. App. 702; Rohr v. Railroad, 117 Mo. App. 302; Randolph v. Railroad, 102 S. W. 1085 ; Miller v. Railroad, 102 S. W.. 592; Meriweather v. Railroad, 45 Mo'. App. 528; Becker v. Lincoln, 174 Mo. 251; Dudley v. Railroad, 73 Fed. 128; Highland Av. v. Burk, 92 Ala. 291; Railroad v. Calderwood, 89 Ala. 247; Anderson v. Railroad, 12 Ind. App. 194; Railroad v. Cook, 33 N. E. 958; Railroad v. Tabringer, 37 U. S. (L. Ed.), 284; Railroad v. Jones, 1 App. Cas. (D. O.) 220. (4) A boy of the age of plaintiff is not chargeable with the same degree of care as is required of a man. “He is chargeable with the prudence of the ordinarily prudent boy of that age under like circumstances.” His act was not contributory negligence. Deschner v. Railroad, 200 Mo. 310; Holmes v. Railroad, 190 Mo. 98; Walker v. Railroad, 193 Mo. 482; Anderson v. Railroad, 161 Mo. 424.

      Boyle & Priest and T. M. Pierce for respondents.
    There was a complete variance between the negligence pleaded and proved. The gist of appellant’s action was that “while plaintiff was attempting to board said car, with said press, the said press was thrown off said car and thrown against plaintiff.” Devoy v. Railroad, 192 Mo. 211. There was no proof that the car was started with any extraordinary or unusual jerk. But, on the contrary, it was shown that the car must have moved away slowly, because the boy, Moran, who was with appellant, had already gotten on the car when it started, and thereafter, although his hands were filled with packages, he got off the car. and joined appellant. The press was caused ■to fall from the car because appellant was holding to it. Appellant did not prove that he was attempting to board a street car, but he merely showed that with an intention to become a passenger he was actually attempting to place a heavy letter-press upon the platform. Price v. State, 35 Ala. 367; Hart v. State, 38 Tex. 382. It may be true that appellant, after he had gotten the letter-press upon the platform of the car, intended to attempt to become a passenger. This, however, he did not plead, and, under the rules of practice which prevail in this State, a party having elected to stand upon one claim of negligence cannot recover upon any other act of negligence, even if it be such that, if properly pleaded, it would have afforded a cause of action. Hesselbach v. St. Louis, 179 Mo. 524; Todd v. Eailroad, 105 S. W. 671. The negligence of starting a car with an unusual or extraordinary jerk is altogether different from the premature putting of a car in motion before sufficient time is allowed to a wayfarer to get aboard. Saxton v. Eailroad, 98 Mo. App. 503. And so it has been held that the starting of a car with a sudden jerk is a specific and different kind of negligence from suddenly increasing the speed of a car after it has started. Smith v. Eailroad, 103 S. W. 593.
   YALLIANT, P. J.

— Plaintiff, a boy twelve years old, in attempting to board a street car, alleged in the petition to have been then owned and operated by the defendant corporations, was severely injured and sues to recover damages for his injuries, alleging that the accident was caused by the negligence of defendants’ servants in operating the car. The case stated in the petition is that the plaintiff, with two other boys, was sent by their employer to carry a letter-press to a person in the western part of the city; that to accomplish their mission it was necessary for them to take passage on one of defendants’ street cars; that 'accordingly they hailed a car at the corner of Fourth and Olive streets, the ear was stopped in answer to their signal, one of the boys, who had other packages to carry, immediately boarded the car, while the plaintiff and the other boy attempted to take passage and place the letter-press on the car, and while attempting to put the letter-press on the rear platform and before they could do so and before plaintiff could get on the platform the conductor of the car negligently gave the signal to the motorman and he suddenly and quickly started the car and the press was thrown off the platform and struck the plaintiff on the left leg* between the hip and the knee causing severe injuries,, which are specified.

The transit company answered by a general denial and a plea of contributory negligence; the - United Railways, by a general denial.

At the close of the plaintiff’s evidence the court gave an instruction for each of the defendants to. the effect that the plaintiff was not entitled to recover; from the judgment of nonsuit that followed, the plaintiff appealed.

The testimony on the part of the plaintiff was to the following effect:

Plaintiff’s own account of the accident was: “I had orders to take the press out and there were three boys — but there was three of us to go out, and one of them had packages, and they sent out a boy that worked in the store to help us on the car and we came to the car with what we had, and one boy got on, and I was raising the press on the street car, and the conductor, before I could push it on the street car, he rang the bell and the car started, and it knocked the press off on my leg, and the car wouldn’t stop but kept going, and we waited for another car, and it stopped and we put the press on and took it out on Olive street ear to Jefferson avenue and then we got off the Jefferson avenne car and delivered the press.” He testified that they had signaled the car to stop and it had stopped for them, one boy had gotten on, and plaintiff and the other boy took hold of the press and were pushing it on the platform, “it was just resting on the platform and I had part of it in my hands and was holding the rest of it.” There was no other passenger in the car at the time; the conductor was in the front part of the car.

On cross-examination he said that he was not on the ear but “I was fixing the press on só I could get on. Q. Let me understand you; you put the press on and were still standing on the ground when the car started? A. I hadn’t got the press on entirely; I was fixing it so I could get on. . . . Q. How near on did you put it? A. We had it about half on, I guess. Q. Were you pushing it? A. I was pushing it on. ’ ’ The car did not stop after it started and the other boy who had at first gotten on the car jumped off and came back to plaintiff and they two hailed the next car, put the press on it and finished the errand on which they had been sent; the third boy went back to the store. It was an iron letter-press and quite heavy. The court asked the plaintiff how long it took to lift the press up and shove it on the ear, he answered, “Why, I don’t think it took us a minute, hardly. As soon as the car stopped one boy was getting on, and we pushed the press right up just as soon as it stopped.” He said it was about half on when the car started and he was pushing it. It was. about eleven o’clock in the forenoon. Frank Moran was one of the three boys, it was he who got on ■the platform. His testimony was substantially the same as that of the plaintiff on the points stated; he testified that as soon as he got on the platform he went around the iron bars that were there, to help pull the press on the platform, but before he got around the conductor started the car and the press fell off and hit the plaintiff on the leg.

The rest of the plaintiff’s testimony as set out in the original abstract related to the character of the plaintiff’s injuries, of which it is sufficient for the present to say it tended to show that, although the plaintiff was able to accomplish his errand, on that day, yet soon after the injuries developed seriously and in consequence the plaintiff has endured considerable suffering and impairment of his health and strength.

The sole question is, was the plaintiff entitled to have his case submitted to the jury?

I. The first point urged by respondent is that there was no evidence tending to prove that the transit company was operating the car, and, according to the original abstract, that point is well taken, but the appellant has by leave of court filed an additional abstract in which the needed evidence on that point is supplied. In the additional abstract it is shown by the testimony of the then president of the transit company that that company was operating the street railroad at that time. There was no evidence, however, tending to show that the United Railways Company had any interest in the railroad or in its operation. The instruction in the nature of a demurrer to the evidence as to the United Railways Company was therefore correct.

II. “Was there evidence tending to show negli- " gence on the part of the conductor and motorman, or either, that caused the plaintiff’s injuries?

In judging the conduct of the defendant’s servants in this respect it is necessary to ascertain what the relation between the defendant and the plaintiff was at the instant of the accident, because that relation determines the duty, and the performance or neglect of performance of that duty determines the question of negligence on the part of defendant.

The defendant’s theory is that the evidence does not tend to show that plaintiff was attempting to become a passenger on the car, but only that he was “attempting to put a heavy letter-press upon the platform,” he remaining on the ground, and, judging from the remarks of the learned trial judge in ruling on the instructions, that was his opinion also; he said: “Gentlemen there is no negligence whatever of a wilful character shown to have been committed by the defendants in this case. Whatever negligence, if any, there is, is by way of mere inadvertence, an omission to perform a duty. There was no duty on the part of the railroad company to either load or see that this, press was safely loaded on the rear platform of the car.”

It is true the boys were attempting to piit the letter-press on the platform, and if that was all that could fairly be inferred from their action the defendant’s theory would be correct. But was that all that their action indicated? A street car is designed to carry passengers, it is not designed to carry freight, and although by common experience we know that passengers in street cars do frequently carry packages in their hands, yet that is a mere incident, it is not the purpose for which the car is operated. When this car turned from Olive street into Fourth the motorman and conductor saw these three boys signaling to stop; unless they had supposed their signal meant that they purposed to become passengers they would not have obeyed it, and, when they saw two of the boys carrying the letter-press to the car and moving as if to put it on, if it had occurred to them that the boys were only aiming to ship the press as freight on the car, they would not have stopped, because they knew that they were not engaged in the transportation of freight, not running a freight ear. "We say the motorman and conductor saw the boys and their signal and their actions; we say so because that is the inference to be drawn when passing on a demurrer to the evidence and because also they stopped the car in obedience to the signal. At that time there was no passenger on the car and it was eleven o’clock in the forenoon; there was nothing to attract the conductor’s attention from the boys, he was on watch and gave tire signal bell to the motorman by which the car was started. If we could, with reason, imagine the conductor thinking that the action of the boys indicated •only a purpose on their'part to load the press on the car to be transported as freight, then we could not understand why he did not forbid them doing so. And •even if he thought the letter-press was a burden beyond the reasonable hand parcels that passengers are accustomed to carry and was unwilling to have it loaded on his car, still, if he recognized that their actions indicated that they intended to board the car as passengers, and to carry the letter-press as a hand parcel, he should have forbidden them putting-it on; their attempt to do so did not justify him in starting the car without warning and without regard to consequences. The fact, however, that the next car that came along stopped for them and the conductor allowed them to put the press on the car and be carried with them, and that when transferred at Jefferson avenue to another car the conductor of that car •also allowed the same act, shows that it was not such an unreasonable burden as to justify the inference "that the effort to put it on the platform did not give notice of a purpose to take passage on the car.

The natural inference to be drawn from the act ■of the plaintiff in this instance was that he intended and was attempting to become a passenger on the car, that the conductor saw him, saw what he was doing and .knew his purpose, and under those circumstances the plaintiff 'was entitled to'the bare that a carrier owes a passenger. It was the. starting of the car before the plaintiff had accomplished the act of putting the letter-press on the platform that caused the accident, at least, in the absence of any other testimony, that is an inference that might fairly be drawn, and it fairly raises a question of fact whether or hot it was negligence in the conductor to give the signal to start at that instant.

• It is argued in support of the ruling of the trial court that the evidence shows that the plaintiff had hold of the letter-press and that when the car started he, holding on, pulled it off. The plaintiff testified that he was pushing the letter-press to get it further on. The boy who had gotten on the car and was going around the iron bars on the platform to help pull the press on, said: “He (the plaintiff) had it holding with one hand and by swinging it it hit him in ^ the leg.” On cross-examination he said: “It was half on, and Lemuel [the plaintiff] had hold of this end loading it on; he was pushing it on and I was supposed to go around and pull it over. ” It is not probable that either boy could be entirely accurate as to the position' of the plaintiff’s fingers on the letterpress. But assuming that the plaintiff’s fingers were gripped around the handle when the car started, it is not a necessary conclusion that he pulled it off. Even in pushing, it would he natural to grip the handle and if, while it was gripped, the car started when he was hot expecting it to do' so and before he had warning to loosen his hold and while the letter-press was only half on in an unbalanced condition, the accident was the result of the starting of the' car, at least that is an inference that the triers óf the fact might reasonably have drawn. If there was anything in the evidence indicating contributory negligence on the part of the plaintiff, it was not so clear as to justify the court in so ruling as a matter of law.

It is impossible to give an exact formula prescribing the acts necessary to constitute the relation of carrier and passenger; only general principles can be stated, and each case must be judged by its own facts. We hold that the evidence in this case tended to show that the plaintiff intended to board this car to be carried as a passenger, that he was attempting to carry that intention into effect, that the defendant’s servants in charge of the car saw, or if they had exercised the care incumbent on them would have seen, what the plaintiff was doing and would have understood what his purpose was, and by suffering him without objection or warning to do what he was doing consented to receiving him as a passenger under those circumstances, and the relation of carrier and passenger was thereby created. And we hold that the starting of the car at the instant and. under the circumstances was negligence for which the defendant would be liable. We mean of course that such would be the legal result if the facts were as the evidence tends to prove they were.

Defendant contends that there is a variance between the negligence as pleaded and the case made by the proof, but we do not so understand it. The petition alleges the negligence substantially as the evidence tends to prove.

The court erred in. giving the instruction in the nature of a demurrer to the evidence as it concerns the St. Louis Transit Company. The judgment is reversed and the cause remanded to be retried in accordance with the views herein expressed.

All concur.


author: LAMM, J.

text:
    KATE HARDIN SULLIVAN, Appellant, v. M. HOLBROOK et al.
    Division One,
    April 1, 1908.
    BRIEF: Failure to Obey Rules. A total disregard by appellant of the rules of the court, in reference to separate statement of points and legal propositions relied upon, and the citation of authorities in support thereof by names of parties and number and page of volume in which found, amounts to a failure to file a brief; and where appellant’s testimony is presented to this court in 26 pages of disjointed “Argument,” and a review of the testimony and pleadings reveals the fact that the case is without merit and the judgment clearly correct, the case affords a good occasion to enforce the rules and affirm the judgment for failure to comply with such rules.
    Transferred from St. Louis Court of Appeals,
    Affirmed.

      Charles Sullivan for appellant.

      V. O. Coltrane for respondents.
   LAMM, J.

On November 12, 1903, Mrs. Sullivan lodged a bill in equity in tbe Greene Circuit Court, the object and general nature of which was to set aside and vacate (1) an executed judgment in partition; (2) the deed to the purchaser (Seamans) at said partition sale; (3) certain conveyances from Seamans to Holbrook and from Holbrook to Judge Goode (and- others between the Jarretts and Seamans) conveying lot one in E. T. Robberson’s addition to the city of Springfield in said county; (4) to declare, establish and execute a trust in said lot under the will of Sue E-. P. Montgomery, the maternal ancestor of plaintiff, who died testate seized of said real estate; (5) to determine and establish the rights of plaintiff under the will of her said mother; (6) to have an accounting of rents and profits; and (7) for general equitable relief.

Among other things, it was alleged in the hill and shown by the proofs that,plaintiff attained her majority on January 9th, 1894. That she was thereafter (in 1895) made a party defendant in a partition suit instituted in the. Greene- Circuit Court, having for its object the partition of said real estate, among certain heirs and the grantees of certain heirs of said Sue E. P. Montgomery, and the sale of said lot. ' That proceedings were had in that case resulting in a partition and sale of the lot in 1895. That plaintiff received and appropriated her share of the proceeds of that sale. The record shows plaintiff executed, in that behalf,' the following acquittance:

“Office of Sheriff of Greene County, Mo-.,

. ' “February 3rd, 1896.

“Received of F. M. Donnell, Sheriff of Greene County, the sum of two hundred and twenty-eight dollars and 75-100 dollars, being in full of my distributive share of real estate sold by partition wherein E. D. Seamans was plaintiff and Kate Hardin et ah, were defendants.

$228.75. Kate Hardin.

• “State of New York, County of New York, ss'. '

‘ ‘ On this 8th day of February, 1896, before me personally appeared Kate Hardin, personally known to. me to be the same person and acknowledged that she-executed the signature on the within receipt for the purposes mentioned, and of her own free will and deed; and that she signed the same. Witness my hand and seal the day and date above stated.

“R. P. Hess, (158)!

Notary, public,

“(Seal.)' NewYork Co.”

■ No appeal' was taken from the interlocutory judgment in partition, and hone from the order approving the report of sale.'

.The allegations of the bill' on which it is sought to overturn the partition, the sale and the sundry deeds made.in connection therewith are (in substance) fraud in the concoction of-.the judgment, between, defendants Holbrook, Seamans and J. H. Jarrett- .in. divers enumerated- particulars. It is also alleged that Judge Goode5 who subsequently purchased-a small part of the lot. fr.om -defendant Holbrook, had notice of the existence of a--trust created by- Mrs. Montgomery’s, will, which .(it.is said) was-an impassable barrier in.the road of .partition, and which latter was made in violation of the express .terms of the will..

•Plaintiff; -in this suit'was originally brought into the partition suit as a party defendant by constructive service,, eventually however appearing .by an attorney and filing answer. There were two sales made under the judgment in partition — -the first, set aside for inadequacy in the accepted. bid. .In her-motion filed in that-case, challenging the confirmation .of the first sale, she appeared by other attorneys. A-second sale-.was made and confirmed. Afterwards she partook of the proceeds and executed the receipt, herein-before set forth. To avoid the effect of that receipt and these appearances, -she alleges -not that she did not receive the money represented by the rceipt, but that ..she was deceived and misled in the-premises in wavs pointed out. She testified at the trial, -that the appearance of. attorneys on her behalf in the partition proceeding was unauthorized by her, but was authorized by.her sister,-who (with her-knowledge) assumed to look after her affairs. • ■

.The.chancellor, nisi,.found-in favor of defendants in.T-;the;ca§e at. bar and-plaintiff appealed - to -the St. Louis. Court of- Appeals. ..The title- to real- estate was plainly' .inyqjyed (sec...12, art, 6, Constitution-; -section 5,-ofi .th.e amendmenj; to-the Constitution in 1884), and the appeal should have been brought in the first- instance to this court. The case was briefed in the St. Louis Court of Appeals, and when reached for determination there was at once certified here, as of course.

I. By rule 15 of the St. Louis Court of Appeals it is provided that an appellant shall file “four copies of a brief, containing: First. A clear and concise statement of the pleadings and facts shown by the record. Second. . An enumeration in numerical order of the points or legal propositions made or relied on, accompanied by the citation of authorities supporting each proposition. Third. If he so elects, an argument supporting each proposition made or relied on.”

By rule 17 of that court it is directed that in citing authorities in support of any- proposition it shall be the duty of counsel to give the names of the principal parties to any case cited from any report of adjudged cases, as well as the number of the volume and the page where the same may be found.

By rule 19 of that court it is provided that, in the discretion of the court, a failure to comply with rule 15 shall result in a dismissal of the appeal or writ of error, or the continuing or resetting the cause on proper terms.

By rule 15 of this court it is provided, inter alia, as follows: “All briefs .... shall contain, separate and apart from the argument or discussion of authorities, a statement, in numerical order, of the points relied on, together with a citation of authorities appropriate under each point. And any brief failing to comply with this rule may be disregarded by the court . . . .

“In citing authorities, in support of any proposition, it shall he the duty of the counsel to give the names of the parties to any case cited from any report of the adjudged cases, as well as the number of the volume and the pages where the same will be found . . . .”

By rule 16 of this court it is provided that if any appellant in any civil case shall fail to comply with rule 15, the court, when the cause is called for hearing, will dismiss the appeal or writ of error; or, at the option of the respondent, continue the cause at the cost of the parties in default.

Comparison will show that the rules of the St. Louis Court of Appeals and of this court are substantial equivalents of each other in the foregoing particulars.- The principal brief and brief in reply filed by appellant’s counsel violate both the spirit and letter of the rules of both courts — in that:

(a) In an array of authorities cited the names of the parties in the cases referred to are omitted, whether by inadvertence or ex industria does not appear.

(b) Not only so, but there is an entire indifference to the' quoted rules in those particulars commanding a separation of legal propositions relied on for reversal from comments of counsel, arguendo. Indeed, appellant presents no brief proper at all — -as required by the established usages of both courts and as understood at the bar. The only authorities cited and the only legal propositions advanced are inextricably interwoven with the warp and woof of a running fire of comment of counsel in twenty-six solid pages of printed matter, labeled by learned counsel himself, “Argument.” This matter is colored and heated with vituperative expletives and rhetorical flourishes, impedimenta, well calculated to divert, or impede, not aid, the judicial mind in its search through the mass for the calm, cold, legal propositions so ambushed and hid away. If learned counsel had paid attention to the rules of court in the logical arrangement and segregation of his legal propositions, and in the proper citation of his authorities, his case would be in a shape contemplated by the-rules, but, as' it is, Ms case is here in ffhe teeth of them. ...

The. rules-of appellate- practice in hand are simple and plain. ■ .-They fill no office of mere red tape, or as a show of surface routine- To the contrary, they have substance, and carry on their face the obvious purpose to aid appellate, courts in getting at the right of a canse. Hence, apparently, they bespeak the dignity arising from obedience. If they are not to he obeyed, they should be done away with once for all. A.just rule, fairly interpreted and enforced, wrongs no man. Ostensibly enforced, hut not, it necessarily wrongs some men, viz,: those who labor to obey it — the very ones it should- not -injure. If the rules in question stand for something and are ever to he enforced-, they should he put in motion in this ease. Accords ingly; they, will he applied.

We hold, therefore, that appellant has no brief here -within -the fair intendment of our rules. - And that, as the burden was on her to point out reversible error and as she' cast .off that burden, the judgT ment should be affirmed.

II. When a cause in an appellate court rides off on a question falling short of the merits it must needs be a matter of solicitude. This being so, the ruling we have just made is softened to- ns by the fact that, we have gone over the testimony and the argument of counsel line by line and, doing the best we can, find no substantial merit in plaintiff’s case. She was of age at the time of the partition. She accepted the frMts of that litigation, enjoying them-for many, years, and.it is-clear..equitable-doctrine-that that she thereby es-topped herself to attack and overthrow;, the .partition proceedings,- -.So, to.o,-she failed to establish the fraud alleged, in her bill .by proof meeting the stringent reT qnirements of the law in setting aside solemn judgments and conveyances — in details not necessary to spread on onr records. She had her day in court. The will .of her mother was there. The title of the parties was threshed out. The alleged .trust was necessarily held in judgment in that case. The complaints she now makes should have been poured into the ear. of the court trying and determining that suit (Interest republicae ut sit finis litium); and, therefore, the very justice of the ease comports well with the disposition made of it because of the violation of our rules. If becomes, then, a very good case to-use to point a moral, viz.: that the rules of court are made to obey, not to break.

The judgment, nisi, is affirmed.

All concur.


author: VALIA ANT, P. J.

text:
    KATE BARRY, Appellant, v. CALVARY CEMETERY ASSOCIATION.
    Division One,
    April 1, 1908.
    1. NEGLIGENCE: Walking in Cemetery: By-Ways. Persons who wish to visit the grave of a relative in a large cemetery and who leave'the regular roadways and sidewalks provided for them and, for their own convenience or pleasure, undertake to go, across the grass-covered ground, are not entitled to expect the same kind of passage-way that is provided in the regular ways.
    2. -: -: Reasonably Sáfe Condition. Even though a cemetery association knows that people áre in the habit of wandering over the grounds regardless of the r'oad and. walk ways, and impliedly invites the public to make such use of the grounds, the most that can be said as to its duty is that it is required to keep the grounds in reasonably safe condition for people to walk over. - - - "
    2.. —*-: .--: Personal Injuries: Demurrer, • ^Plaintiff left the regular roadways and sidewalks of a cemetery , containing several hundred acres, and for her. own convenience walked across the grounds towards her brother’s grave, and "■ stepped.into a small hole so concealed -by the grass that-n'o ordinary inspection could discover it, and so small that her foot was extricated with difficulty. Her ankle was badly injured. There is no evidence as to how the hole was made, or that defendant knew of its existence or was likely to discover it except by accident or extraordinary care. Held, that she cannot recover, and ■ the trial court properly sustained a demurrer to her evidence. [Following Barry v. Cemetery Association, 106 Mo. App. 358.]
    Appeal from St. Louis City Circuit Court. — No». Daniel G. Taylor, Judge.
    Affjbmied.

      David Murphy for appellant.
    (1) Plaintiff was invited to come upon the premises of defendant, not for her pleasure, hut in the performance of a sacred duty, in the performance of which both parties were to be benefited, and she fell into a trap, a pitfall, and was seriously injured. Heaven v. Pender, 11 Q. B. D. 506; Welch v. McAllister, 15 Mo. App. 492; Thompson on Negligence, sec. 8 ; Webb’s Pollock on Torts-(Am. Ed. 1894), p. 627; Chapman v. Rothwell, 1 E. B. & E. 168; Holmes v. Railroad, L. R. 4 Ex. 254; White v. Francel, 2 C. P. D. 308. (2) The evidence was, that from the appearance of the excavation into which plaintiff fell, it had existed a long time — probably a year. That was evidence from which it might reasonably be drawn that the defendant’s officers or servants knew it, or else would have known it, if they had exercised ordinary care. Markey v. Railroad, 185 Mo. 364 ; 0 ’Donnell v. Patton, 117 Mo. 13; Norton v. Kramer, 180 Mo. 536; Carey v. Kansas City, 187 Mo. 715 ; Beck v. Carter, 68 N. Y. 283; Witte v. Stifel, 126 Mo. App. 304. (3) The pleadings allege and the evidence shows that plaintiff was either expressly or impliedly invited to come upon the premises of defendant for purposes for which the premises were appropriated and occupied; and by preparation and adaptation of said premises for use by persons occupying the relations between plaintiff and defendant, as shown by the pleadings and evidence, which naturally and reasonably led plaintiff to suppose and believe that she might safely enter thereon. So that the negative propositions asserted in Sweeny v. RailRoad, 10 Allen 372, cited in Wencker v. Railroad, 169 Mo. 599, cannot be invoked nor quoted as being the enunciation of the proper doctrine in the case at bar.

      J. L. Hornsby for respondent.
    (1) Plaintiff being on that part of defendant’s premises where the accident occurred, as a mere licensee, defendant owed her no duty to keep- such part of its grounds in a safe condition for her to walk over, and is not liable to respond in damages for her injury. Barry v. Calvary Cemetery Ass’n, 106 Mo. App. 358; Wencker v. Railroad, 169 Mo. 600. (2) But even if it could be considered that plaintiff was on that portion of defendant’s premises where the accident occurred, by express or implied invitation, still in that case the rule is that defendant is required to keep the premises only in a reasonably safe condition, and is liable only for injuries occasioned by the unsafe condition which is known to defendant and not to plaintiff, and which it has negligently suffered to exist and has given them no notice of. Carleton v. Iron Co., 99 Mass. 216; O’Donnell v. Patton, 117 Mo. 13; Welch v. McAllister, 15 Mo. App. 492; Miller v. Peck Dry Groods Co., 104 Mo. App. 614; Thompson on Negligence, secs. 970, 994.
   VALIA ANT, P. J.

— This is an action for damages for personal injuries sustained by plaintiff in consequence, as she alleges, of the negligence of defendant. The defendant, as its name indicates, is a cemetery association; it owns a large cemetery in the city of St. Louis, containing several hundred acres. The plaintiff, according to her petition, had a proprietary interest in a lot in the cemetery and á sentimental interest in the fact that a deceased brother of hers was buried in- the lot and she had the right to visit the cemetery. The petition charges that it was the' duty of the corporation “to keep its grounds and every part thereof contiguous to the burial lots in a reasonably safe condition, so that lot and' grave owners and others could pass over and upon the grounds of defendant to and from their respective lots and graves;” that ón "a certain day she was lawfully in the cemetery' on her way to' visit the grave of her brother, walking across the grounds of defendant; that there was an excavation or hole'in theground, on every side of which the grass-had so- grown and bent down as to completely conceal it, and in consequence the plaintiff stepped into the hole with one foot and badly sprained her ankle and seriously • injured the joint. The -petition avers that the defendant knew or by the exercise of ordinary care could have known that-the hole was there. The damages alleged were $4,700. The answer was a general denial and a plea of contributory negligence.

’ ’ At' the close of the plaintiff’s case the court, at. the request of the defendant,'gave an instruction to the effect that the plaintiff was not entitled to -récbver, which resulted in a nonsuit with leave, which the court refused to set aside, and plaintiff has- appealed.

The plaintiff’s testimony 'tended to show as follows :■

On the morning in question the plaintiff, in company with- her sister -and daughter, was in- the cemetery aiming-to go'.-to the grave of. the plaintiff’s brother. They first intended to visit another lot and thCy. started in'that direction, but after'going'a jiart of • the way "they concluded to'-abandon that purpose- and -turned back to Pis'it the brother,’s' gritve. There were'roadways and • sidewalks ■ in the cemetery, and up to the time the plaintiff and her companions turned back they had walked along the sidewalks, but .They ■came to a point where they thought they could shorten the walk, and as one of the party' manifested a desire to return in time to go to church that morning, they concluded to leave the regular roadway and sidewalk and cut ¿cross vacant lots, and they did so. The plaintiff’s sister and daughter were leading and she was following last; within a few feet after she'-left. the sidewalk one of her feet went into a hole in the e¿rth and. she fell, spraining her ankle and hurting her quite badly. The size of the hole is not given exactly,-although one witness measured it three'months after the accident and stated that it- then measured 114-inches . long, 11 inches wide and 9-J inches deep. Thé plaintiff testified, and so did her other witnesses, that the hole was large enough for her foot to sink into it, but so small that it was- with great difficulty thé foot could be extricated; that in pulling it out assistance was required, and such force was used as to cause much pain and- tear the shoe; What caused the hole the evidence does not show, but it does show that it was entirely covered with grass so that it could not be seen. People who visited the cemetery did not always confine themselves, to the regular roadways and sidewalks, but frequently strolled across the grounds; The lot to which plaintiff and her companions. were aiming n to go was not immediately contiguous to the róádway or sidewalk but was near it, plaintiff thought it was one hundred to two hundred feet distant,’ was not sure; it was five hundred feet distant from the point where plaintiff' left the road to cut across thé vacant lots. Some three months or more after the accident plaintiff called on the superintendent .of.thé cemetery, he went with her to the scene of the! accident, and she pointed out the hole, to him. . One.-of plaintiff’s witnesses who accompanied her and the superintendent testified that the hole at that time was full of leaves. The superintendent said it was a had place, and if he had known it he would have had it filled before. He did afterwards have it filled.

This is the second suit of the plaintiff against the defendant for this alleged wrong. The first suit resulted in a verdict and judgment for the plaintiff for $350, from which defendant appealed to the St. Louis Court of Appeals, where the judgment was reversed without remanding, the court holding that under the evidence the defendant was not * liable. [Barry v. Cemetery Association, 106 Mo. App. 358.]

The petition in the former ease is not before us, but this is evidently the same cause of action, and the testimony for the plaintiff now is not materially different from what it was then. The law of the case is well expressed in the opinion in that case by Bland, P. J., speaking for the court, and we see no occasion for a further discussion of it.

The roadways and sidewalks were landmarks to direct pedestrians and others the way to go, but if persons chose to leave the regular way provided for them and, for their own convenience or pleasure, undertook to go across the grass-covered ground, they were not entitled to expect the same character of passageway that was provided in the regular road. If, as is contended by plaintiff, the defendant knew that people were in the habit of wandering over the grounds regardless of the roads, and impliedly invited the public to make such use of the grounds, then the most that could be said as to the duty of the defendant was to keep its grounds in reasonably safe condition for people to walk over. According to the plaintiff’s evidence here was a cemetery containing several hundred acres and the only thing pointed out to mar its safety was this small hole so concealed from view by the grass that no ordinary inspection conld discover it. The size of the hole is best shown by the fact that it was just large enough to receive the lady’s foot pressed into it by her weight, but so smáll that it was only with painful exertion that it could be.extracted. It was somewhat larger when the witness measured it, three months later, hut it is not unreasonable to conjecture that in the effort to get the plaintiff’s foot out, the hole was made larger. Her testimony was that a man came to her assistance and helped her out of it. How the hole was made was left to conjecture. In the case above mentioned that was before the Court of Appeals, there was evidence tending to show that gophers sometimes burrowed such holes in those premises, but however. that may be and whatsoever made the hole it was not of a kind to suggest that it was done in defendant’s business and there is no evidence that defendant knew it or was likely to discover it except by accident or extraordinary care. On the plaintiff’s own evidence she has no right to recover of the defendant for her * misfortune.

The judgment is affirmed.

All concur.