author: GOODE, J. PER CURIAM:

text:
    ELEANOR MAY v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY and BENJAMIN E. HAWKINS, Appellant.
    In Banc,
    November 20, 1920.
    1. NEGLIGENCE: Boarding Train: Instruction: Eliminating One Charge: Disadvantage to Plaintiff: Inconsistency. Where there was positive evidence to the effect that plaintiff was in a group of persons standing about tbe steps of a coach, waiting to board it when those who were leaving it were out of the way, and that she had put her boy on the upper step and raised her foot to 'the lower step, not only before .the train had begun to move, but as soon as the steps were clear of passengers who were ahead of her, an instruction telling the jury that there.was no evidence to support the charge that defendant did not “allow the train to remain motionless for a reasonable length of time to allow the plaintiff to board and enter the same and secure a reasonably safe foothold upon said train,” was wrong, and placed plaintiff at a disadvantage, even where the verdict was for her. Besides, said instruction was inconsistent with another which made plaintiff’s right to recover dependent on a finding that “while said train was standing at said station platform or the purpose of taking passengers, the plaintiff, in the exercise of reasonable diligence, proceeded to board said train.”
    2. -: -: Passenger Status. A person who has a ticket to a station at which defendant’s train regularly stops is a passenger while waiting at the place of embarkation to take passage on the train to such station and up to the time of its departure, if reasonable diligence is used in- boarding the train after its arrival. But the status of a passenger may be lost if the holder of the tickets attempts to board the train at the very second of its starting, after it has stood at the station long enough for every person who intends to take passage, to do so with safety, acting with due diligence; for unless reasonable promptness is used the implied agreement to receive such person as a passenger has expired.
    3. --: Warning. It is not incumbent on a conductor or other operative of a train, after it has waited a reasonable time to discharge and receive passengers, to give notice that it is about to proceed, to persons who may be standing about the station platform with nothing in their manner to indicate that they intend to become passengers; but it is not the law that the conductor, in such emergencies, is excused from giving warning unless he actually sees some person preparing or attempting to get upon the train. The duty to give warning, before causing the train to start, arises not only when the conductor or other operative sees some person in the act of boarding, or preparing to do so, but also when, in the-exercise of the vigilance exercised by prudent trainmen under similar circumstances, there is reason to believe someone is about to go aboard.
    4. -:-:-: Inconsistent With Defense Theory: Harmless Refusal of Instruction. If defendant bases its defense on the theory that plaintiff attempted to board the train after the signal to start had been given and after the train was in motion, and the court directs the jury to return a verdict for defendant if they find the attempt was made under those conditions, the refusal of an instruction asked by defendant to the effect that there was no duty upon the defendant to warn the plaintiff that the train was about to proceed unless the conductor saw her, was harmless; for if defendant caused the train to start while plaintiff was in the act of boarding it, and when it knew or ought to have known that fact, it was guilty of negligence, even though she was warned before a signal to* the engineer to start was given. Where plaintiff's right to a verdict is made to depend exclusively on a finding that the train was moved while she was in the act of boarding it, an instruction for defendant attempting to define under what circumstances defendant was relieved of the duty to warn her that the train was about to move, is unnecessary.
    5. -: Starting Train. To start a train which is standing at a station to receive passengers, while a person whose status is that of a passenger has not delayed unnecessarily in boarding it, is an act of negligence within itself on the part of the railroad company towards such person.
    6. -: Degree of Care Required of Carrier: Contract. Carriers of passengers are to be held to the highest practicable degree of care for the safety of their passengers. The duty arises out of the contract with the carrier by which a person acquires the status of a passenger, and by which he becomes entitled to the observance by the carrier of that unusual care to prevent him from being hurt while the status continues.
    7. --: Degree of Care Required of Conductor. But-the conductor of a passenger train is individually liable to the passenger only for ordinary care. He is not under contract with the passenger, but his contract is with the carrier, and while he is liable to the • carrier if he fails to exercise the highest practicable degree of care towards its passengers, he is not individually liable to the passenger if he fails to exercise that unusual care but does exercise ordinary care towards him. So that, where the passenger sued both the railroad company and the conductor for damages for personal injuries inflicted upon her by the negligent starting of a train while she was in the act of boarding it, an instruction which required the conductor, as well as the company, to exercise the highest degree of care for her safety, was erroneous, and necessitates a reversal.
    8. -: Evidence: Contemporaneous Statement of Third Party. Where plaintiff sues for damages received in boarding a train, she had waited at the station for the train which was due to arrive in twenty or thirty minutes while her husband went up town to make some small purchase, she anxiously awaited his return, and defendant’s contention is that she waited too long and tried to board the train after it had begun to move, an utterance of her husband when he entered the last store he visited that he was in a hurry, that his train was at the station, being a spontaneous statement and uttered at a place from which the station and train, only a short distance away, could.be seen, and being therefore practically contemporaneous with the main event, -is competent evidence on behalf of defendant.
    9.-: Elements of Damage: All Other Facts. An instruction on the measure of damages which tells the jury to consider, not only the proper elements by which to determine the damages to be awarded, but also “all the other facts and circumstances in evidence,” where plaintiff is a mother and rearing several children, some of whom are small and one an infant, is wrong, and may be prejudicial; and the tendency to introduce those words into instructions is condemned though their insertion, if the only error, might not be reversible error.
    Appeal from Buchanan Circuit Court. — Hon. Thomas ' B. Allen, Judge.
    Eeversed and remanded.

      H. J. Nelson, M. G. Roberts and E. M. Spencer for appellants.
    (1) Plaintiff’s instruction in which, the court charged the jury that it was the defendants’ duty to exercise the highest degree of care to ascertain whether the plantiff was boarding the train regardless of whether she did so before or after the lapse of a reasonable time, was erroneous. It applied the “street car” rule to steam railroads. The error was especially manifest and extremely prejudicial when it is considered that the other alleged act of negligence pleaded, to-wit, defendants’ failure to stop a reasonable time at Forest City, was not submitted to the jury in plaintiff’s instructions, but was in fact withdrawn from their consideration by the trial 'court. After the lapse of a reasonable time for passengers to get on or off, there is no duty to exercise the highest degree of care to ascertain whether persons are attempting to board the train. Pan! v. Met. St. Ry. Co., 379 S. W. (Mo. App.) 787; Clotworthy v. Railroad, 80 Mo. 220; ' Quinn v. Met. St. Ry. Co., 218 Mo. 554; Hurt v. Railroad, 94 Mo. 255; Straus v. Ry. Co., 75 Mo. 3.90. (2) Under the law as declared in the foregoing decisions of this court,-defendants ’ refused Instruction No. E, to the effect that if the train was stopped at Forest City a reasonable length of time sufficient to allow passengers to get on and off in safety, then there was no duty upon the defendants to warn the plaintiff that the train was about to proceed unless the defendants or the employees in charge of the train actually saw the plaintiff in the act of preparing or attempting to get on the train before giving the signal to the engineer to proceed, should have been given: See authorities supra. (3) The court erred in refusing to admit in evidence as a part of the res gestae the statement of plaintiff’s husband when he entered Speer & Thornhill’s store in the Sentney Building, 380 feet from the depot, that he was in a hurry and that his train was already at the station. ■ The statement of a husband, even though he is otherwise incompetent to testify, or a witness, or a third party, if illustrative of the main act or connected with the principal fact, is admissible in evidence. Redmon v. Met. St. Ry. Co., 3.85 Mo. 11; Strother v. McFarland, 194 S. W. 882; Crowther v. Gibson, 19 Mo. 365; Kleiber v. Peoples Ry. Co., 107 Mo. 240; 24 Am. & Eng. Ency. Law (2 Ed.), p. 66. (4) The instruction on the measure of damages, in which the court invited and encouraged thé jury to take all the facts and circumstances in evidence into consideration on the issue of the amount of damages which they would award the plaintiff, was, under the circumstances of this case, erroneous. The fact that a plaintiff in a personal injury suit has a family of children cannot be considered in determining his or her damages, and this court has held that it is error to permit such evidence to be introduced if duly objected to. But in this case, even if the jurors were assumed to have been so blind as not to be aware of tbe presence and existence of plaintiff’s children while they roamed about the court room, yet the very narrative of the accident and plaintiff’s alleged inability to work thereafter necessarily disclosed that she had children. (5) The instruction in the nature of a demurrer to the evidence, asked by defendant Benjamin Hawkins at the close of plaintiff’s case and again at the close of all the evidence, should have been given. It is alleged and appears, without contradiction, in evidence that Hawkins was only an employee of his co-defendant, the railroad company. The plaintiff’s petition charged him not with misfeasance, but with non-feasance. Under such circumstances, he is not liable in any event to third parties. McGinnis v. Ry. Go., 200 Mo. 347. (6) Plaintiff’s instruction was erroneous as to defendant Benjamin Hawkins for this further reason: Hawkins was not a common carrier. Such relationship did not exist between him and the plaintiff. There was no duty, therefore, upon him, under the law, to exercise the highest degree of care so far as he, individually, was concerned. Yet the court instructed the jury that if he- failed to exercise the highest degree of care, they must find a verdict against Hawkins. If Hawkins was liable at all to the plaintiff, which appellants deny, his' duty was merely to exercise ordinary care.

      Duvall S Boyd for respondent.
    (1) There was no error in giving plaintiff’s Instruction No. 2. (a) Plaintiff was, at the time she undertook to board the train in question, a passenger, to whom the defendants owed the duty to exercise ■ the-highest degree of care that a very prudent person would exercise under the same or similar circumstances. Benjamin v. Met. St. Ry. Co., 245 Mo. 598; Furnish v. Mo. Pac. Ry. Co., 102 Mo. 438; Iba v. Railroad Go., 186 Mo. App. 718; Lindsay v. Ry. Co., 178 S. W. 276 ; Barth v. Elec. Ry. Co., 142 Mo. 535; Tibby v. Mo. Pac. Ry. Co., 82 Mo. 292; Albín v. Ry. Co., 103 Mo. App., 308. (b) The stopping by defendant of the train in question at the depot platform at Forest City was an invitation to plaintiff to board the same, she being in possession of a ticket entitling her to passage thereon, and that invitation continued so long as the train remained standing. Iba v. Railroad, 186 ¡Mo. App. 718; Fields v. Met. St. Ry. Co., 169 Mo. App. 624. (c) Plaintiff’s instruction in fact required the jury to find that defendants did not stop.said train a reasonable length of time at Forest City, (d) The trial court committed error against the plaintiff when it gave to the jury defendants’ Instruction No. 7, because plaintiff’s evidence showed she acted with all due diligence, (e) The mere” fact, if it was a fact, that plaintiff was the last person to get upon the steps of the coach, did not render plaintiff a dilatory passenger, nor justify the court in giving defendant’s Instruction No. 7. Fields v. Met. St. Ry. Co., 169 Mo. App. 624. (f) Plaintiff had been invited to become a passenger on the train in question, had responded to the invitation, had placed herself on the steps of the coach before the invitation was closed, and defendants were, bound to treat her as a passenger, and to exercise towards her the highest degree of care. Fields v. Met. St. Ry. Co., 169 Mo. App. 624. (g) Appellants cannot complain of the error of the court in giving their Instruction No. 7, because they requested it. (2) Defendant’s Instruction E was properly refused.’ It told the jury, in effect, that there was no duty on those in charge of the train to look to see whether or not there was anyone getting on the train at the time of giving the signal to the engineer to proceed from the station. That cannot be the law. Thomure v. Ry Co., 191 Mo. App. 640. (3) There was no error in excluding the alleged statement of plaintiff’s husband which it was claimed he made in a store on the afternoon of the injury to plaintiff. Such alleged statement was not admissible as res gestae. Bonslett v. New York Life Ins. Co., 190 S. W. 870; Freeman v. Loyal Prot. Ins. Co., 195 S. "W. 545; Hooper v. Standard Life Ins. Co., 166 Mo. App. 209; .Rnsebenberg v. So. Elec. Ry. Co., 161 Mo. 70; Barker v. Ry. Co., 126 Mo. 152; Redmon v. Met. St. Ry., 185 Mo. 1; Ranney v. Lewis, 182 Mo. App. 58; Winster v. Holmes, 177 Mo. App. 130; Whitney v. Sioux City, 154 N. W. 497; Donnelly v. Harris, 291 Mass. 466. The alleged statement of plaintiff’s husband even if relevant, was objectionable as hearsay and was not rendered competent by any rule of evidence. 16 Cvc. 1195-1196. (3) There was no error in giving plaintiff’s Instruction No. 3 on the measure of damages. Salmon v. Ry. Co., 197 S. W. 35; Sidekum v. Wabash Ry. Co., 93 Mo. 400; Kelly v. Stewart, 93 Mo. App. 47; McNamara v. Transit Co., 106 Mo. App, 349; Phelps v. Zinc & Lead Co., 218 Mo. 572; Harmon v. Donshoe, 153 Mo. 263; Chicago St. Ry. Co. v. Dougherty, 110 111. App. 204; Chicago City Ry. Co. v. Gemmill, 209 111. 638. (4) Under the evidence in this case the court could not have sustained a demurrer as to defendant Hawkins without doing violence to the established law.of this State. The company was acting through him. His act was its act. It could act only through its servants and Hawkins was its servant, charged with the operation of the train. (5) The position taken by appellants in their last point is almost ludicrous. The company was acting through Hawkins as its conductor in charge of the train. There was a duty on him, under the law, to exercise towards plaintiff the highest degree of care. Otherwise a corporation carrier of passengers could never exercise towards its passengers the highest degree of Care imposed by law, nor, indeed, could it exercise any care, or do any act, for they can act only through their servants and employees.
   GOODE, J.

— plaintiff obtained a verdict against defendants for twenty-five thousand dollars for a personal injury, alleged to have been caused by the negligence of defendants in starting the train plaintiff wished to take as she was in the act of getting on it. The defendant corporation was operating the train at the time of the accident and defendant Hawkins was the conductor of it. Nine thousand dollars was remitted from the amount of the verdict, following an announcement by the court that unless plaintiff would remit that sum and thereby reduce the judgment to sixteen thousand dollars, the defendants’ motion for a new trial would be sustained. After the remittitur had been entered, judgment was rendered for the reduced amount, and the motion for new trial having been overruled, defendants appealed to this court.

The accident occurred at Forest City, a way station on defendant’s railroad, from which a branch line runs to Oregon, the county seat of Holt County, three and a half miles from Forest City. Plaintiff and family resided at Napier, Missouri, a town on defendant company’s line, six miles north of Forest City. On the day of the accident, June 3, 1916, plaintiff and her husband purchased a round-trip ticket, or tickets, from Napier to Forest City. After arriving at the latter station, they went to Oregon, transacted some -affairs there, and returned to Forest City twenty or thirty minutes before the train on which they intended to return to Napier would arrive from the south. Plaintiff and her son, a boy five years of age, went into the waiting room at the station to await the arrival of the train, and the husband went into the business part of the town, where he visited two or three stores and made several purchases. There is evidence to prove that while he was purchasing in one store, the train he expected to go home on whistled for Forest City, and thereupon he went hurriedly into another store, bought something there and before he left the building, the train had come in and was standing at the station. There is no evidence directly opposed to those facts; but plaintiff testified her husband was by her side when she attempted to get on the train. There is also testimony to show she awaited his. return with anxiety, conscious that he was lingering in the town too long and the train might come while he was still away from the depot. Several witnesses testified that as the train drew into the station, plaintiff, with her son, walked out of the waiting room and a short distance along the platform of the station, toward the rear coaches; that as she did so her husband was seen hurrying toward her and was heard to exclaim: “Hurry up; they’re going,” or similar words.

The day was Saturday and the train had been well loaded with passengers all the way from St. Joseph; a goodly number of passengers got off the train at Forest City, and not quite as many got on. Plaintiff testified she attempted to get on the coach next to the rear end of the train and as soon as she had an opportunity to do so; that is to say, as soon as the passengers who were leaving the train and others ahead of her who wished to take passage, were out of her way. She testified further that while the train was standing and without motion, she lifted her little son onto the next step below the platform of the coach, then took hold of the left handrail of the coach with her left hand, planted her left foot on the bottom step, and as she was in the act of putting her right foot on the step, the train commenced to move, thereby preventing her from getting a secure footing on the step and dragging her along until she fell between the rails of the track and the station platform, and received injuries which will be described presently. She testified, too, and there is other testimony to the same effect, that no warning or notice of any kind was given'before the train started; that the conductor signalled the engineer to start by lifting his hand, and that this motion was made by the conductor immediately after plaintiff had placed her foot on the step of the coach; that none of the train crew was near to assist her in getting aboard. Those statements were corroborated by several witnesses and were contra-dieted by several, who swore positively plaintiff did not attempt to get on the coach until the train was moving; that after it had started she put her boy on the steps of the coach; that as she was unable to obtain a secure footing and was carried forward by the motion of the train, a gentleman standing on the platform of the coach seized the boy and held him; that plaintiff stumbled along a short distance and then fell between the track and the station platform.

The plaintiff’s own testimony, and the testimony of four or five witnesses besides, leaves the impression that the signal for the train to start was given after her foot was on the steps, and that the movement of the train began afterwards. The evidence tends to prove, too, a considerable number of passengers had been standing on the station platform around the steps of the coach, intending to take passage, and were getting on up to the time the train started; and when it started some of them were on the platform of the coach, and some standing in the aisle, not yet having had time to find seats.

The impression left by the testimony of the witnesses for defendants is that plaintiff went outside the door of the depot when the train drew up to the platform, and remained outside, waiting for her husband, who came up hurriedly while she was there and urged her to hasten as the train was starting, or about to start; that she had not advanced towárd the train until it started, and that she attempted to get on it after it was in motion.

The length of time the train stopped to receive and discharge passengers was estimated by the witnesses at from one and a half to five minutes. The conductor testified the stop was four minutes; also that before giving the signal to start,.he looked up and down the depot platform, saw no one was alighting or getting on die train, then walked forward to the baggage car and helped load some packages which were to be carried as express matter; when this had been done, he looked down the platform and seeing the train was clear of alighting or boarding passengers, called out: “All aboard!” waved his hand to the engineer to start and walked back along the train, intending to get on the smoking car. He then saw plaintiff attempt to place her child on the steps of the coach next to the rear end of the train; this was after the train had started and was moving faster than she could keep up with; she was “kind of pitching forward;” he sprang onto the front end of the smoking car, and pulled the automatic cord for a stop.

When plaintiff was picked up she was unconscious and remained so for eight hours. She had been struck on the left side over the heart; had received a severe blow on the temple above the left eye; a bruise on the back of her head; injuries to her spine, and the' fracture of two ribs. She was confined to her bed for four months or more, and got up first on Thanksgiving day. After the injury her left leg was paralyzed and, in the opinion of a physician or two, the paralysis is permanent. One doctor said he ran a red hot iron up and down her left leg without the exhibition of any sensation, of pain; another physician said he thrust pins into the leg and she showed no sign of pain. Her left eye lost half its visual power by atrophy of the optic nerve, and a physician testified he thought this condition would be permanent. For a long time her head would draw back almost straight between her shoulders; she has suffered from dizziness and has to sit down, now and then, when walking, to avoid falling. Up to the time of the trial, ■which was a year and a half after the accident, she had been compelled to use a crutch in walking; walks better with two than one, but uses one by the advice of her physician,- because two hurt her back. She has endured much pain from her injuries. Two physicians testified her condition iu the respects aforesaid could have been caused by the blows she received from the train while it moved along and she was clinging to the handrail, and by falling as she did.

Two charges of negligence are made in the petition: one that defendants did not stop the train “ and allow the same to remain motionless for a reasonably sufficient length of time to allow the plaintiff to board and enter the same and secure a reasonably safe foothold upon said train.” The court eliminated that charge of negligence from the case by an instruction which declared there was no evidence to prove it. The other charge was, as we have stated, that while plaintiff was in the act of boarding the train, defendants carelessly and negligently caused and permitted it to start and move forward suddenly and violently, without warning plaintiff, “when they knew, or by the exercise of due care and diligence, could -and would have known, that the plaintiff was in the act of boarding said train and was in a position of imminent peril and place of danger, stepping upward and attempting to board and enter said passenger train, and that she was in danger of being thrown down and injured by the starting of said train. ’1

Defendants complain of the giving of two erroneous instructions for plaintiff, and the refusal of one requested by defendants (which should have been given); the refusal to direct a verdict in favor of conductor Hawkins ; excluding testimony to prove an exclamation made by the husband of plaintiff when he entered the store last visited by him, to the effect that he was in a hurry as his train was already at the station; the heavy verdict returned, which is said to have been so excessive as to show the jury were influenced by prejudice against defendants and sympathy for plaintiff, and that the amount of the verdict, even after the remittitur had been entered, was in excess of a just award.

The principal instruction for plaintiff, after hypothesizing issues about which no question has been raised on the appeal, advised the jury, in effect, that if plaintiff had a ticket from Forest City to Napier, and was waiting at the former station to take passage on the train when it arrived, then plaintiff, at that time, was a passenger of defendant company. The instruction then proceeded as follows:

‘ ‘ That it was the duty of said railroad company by and through its said conductor and other - agents, servants and employees in charge of said train, to exercise the highest degree of care that very prudent persons would use or exercise under the same or similar circumstances, for the safety of plaintiff while she was in the act of and attempting to board said train for the purpose of being transported thereon; and if you further believe and find from the evidence that while said train was standing at said station platform for the purpose of taking on passengers, if you so find, the plaintiff, in the exercise of reasonable diligence and ordinary care on her part, proceeded to board said train for the purpose of being transported as such passenger, and that at said time and place the defendant railroad company, and the defendant Benjamin E. Hawkins, in charge of said train as conductor of defendant railroad company, if you find from the evidence he was the conductor in charge thereof, negligently caused or suffered said train to start while plaintiff was so in the act of boarding the, same, without any warning to plaintiff, and that at the time of so negligently starting said t^ain, if you find it was so negligently started, the defendant railroad company, and the defendant Benjamin E. Hawkins, so in’charge of said train as conductor, if you so find, knew, or by the exercise of the highest degree of care that a very prudent person would exercise under the same or similar circumstances, would have known that plaintiff was in the act of boarding said train, and that the negligent starting of said train, if you so find, caused plaintiff to be jerked or thrown therefrom and injured, and that plaintiff at all such times was in the exercise of such care, caution and diligence as an ordinarily careful and prudent person would exercise under the same or similar circumstances — then the plaintiff is entitled to recover in this action and it is your duty as jurors to return a verdict in her favor.”
Wé copy defendants’ refused instruction “E
“The court instructs the jury that if you find and believe from the evidence that the train in question was stopped at Forest City a reasonable length of time sufficient to allow passengers to get on and off in safety, then there was no duty upon the defendants to warn the plaintiff that the train was about to proceed, unless the defendants or the employees in charge of the train actually saw the plaintiff in the act of preparing to or attempting to get on the train before giving the signal to the engineer to proceed from that station.”

Complaint is made also of the instruction given at plaintiff’s request on the measure of damages, because, after advising the jury as to all the suffering from her injuries and the nature and probable permanency of them, as facts to be considered in estimating the damages to be awarded, the jury was told to consider along with those matters, “all the other facts and circumstances in evidence.”

I. The essential ground for a verdict for plaintiff was, that defendants did not hold the train at the station a sufficient length of time for persons who intended to leave or get aboard to do so in safety. There was abundant evidence in the record to prove not enough time for that purpose was afforded; abundant evidence, too, to prove the injuries to plaintiff were caused by the starting of the train by the conductor without allowing her sufficient time to obtain a footing on the steps. Her own statements and those of corroborating witnesses are positive, to the effect that she was in a group of persons standing about the steps of the coach, waiting to climb on when those who were leaving the train were out of the way; that she had put her boy on the steps of the coach and raised her foot to the lower step, not only before the train had begun to move, but as soon as the steps were clear of passengers who were ahead of her. The instruction that there was no evidence to prove the employees of the company in charge of the train failed to hold it a sufficient length of time to allow passengers to get on in safety, was wrong, and put plaintiff at a disadvantage. The instruction was inconsistent with the principal one given for plaintiff; for the right of the jury to return a verdict for her under the latter instruction depended, among other things, on a finding that “while said train was standing at said station platform for the purpose of taking on passengers . . . the plaintiff, in the exercise of reasonable diligence . . . pro ceeded to board said train.” If the plaintiff was reasonably diligent in her endeavor to take the train, which it was incumbent on her to be, and nevertheless the train started before she succeeded in getting on it securely, as the said instruction required the jury to find in order to give her a verdict, it clearly follows the train did not remain standing at the station a sufficient time to take on intending passengers.

In view of the requirement that plaintiff must have exercised diligence in boarding the train, the portion of the charge which said she was a passenger when she endeavored to do so, was correct. If she had a ticket from Forest City to Napier and was waiting at the station to take passage on the train and attempted to take passage with reasonable promptness, her legal status was that of a passenger, and defendant company’s employees in charge of the train owed her the duty of high care for her safety. [Benjamin v. Railway Co., 245 Mo. 598, 608.] We, therefore, find nothing uns'ound in the theory of the principal instruction for plaintiff in regard to the facts on which it conditioned the liability of the railway .company. If plaintiff had been belated, a possibility contrary to the hypothesis of the instruction, and had attempted to board the train at the very second of its starting, after it had stood at the station during an interval long enough for 'every person who intended to take passage to do so by acting with due diligence, it may be that, she would not have occupied the status of a passenger, for the reason that the implied agreement of the company to receive her as such, would have expired; and the operatives of the train might then presume, nothing to indicate otherwise occurring, that all persons who 'meant to take the train were aboard. [Hunt v. Railroad, 94 Mo. 256, 263; Chicago Railway Co. v. Lampman, 18 Wyo. 106, 24 Ann. Cas. 788; 3 Thompson, Negligence, § 2861.]

II. The instruction requested by defendants and refused, in regard to the duty to warn plaintiff, was rightly refused, because it was not an exact statement of the law, and because, too, an instruction of that character was required in view of the theory of recovery adopted by the court' below. It is not. incumbent on a conductor ‘or other operative of a train, after the train has waited a reasonable time to discharge and receive passengers, to give notice it is about to proceed, to persons who may be standing about the station platform with nothing in their manner to indicate they intend to become passengers. But the duty to give warning in such a contingency before causing the train to move, arises not only when an operative of the train sees some person in the act of boarding it, or preparing to do so, but also when, in the exercise of the vigilance exercised by prudent railroad operatives under similar circumstances, there is reason to believe some one is about to get aboard. [Straus v. Railroad, 75 Mo. 185; Ibid, 86 Mo. 421; Clotworthy v. Railroad, 80 Mo. 221, 24; Hunt v. Railroad, supra.]

Moreover, the case was submitted on theories which did not require an instruction of that character in order to present fairly^the defenses. On the hypothesis of defendants — that plaintiff attempted to get on the train, not only after the signal to start had been given, but after the train was in motion — the refusal of the instruction was harmless, because the court directed the jury to return a verdict for defendants if they found the attempt was made under those conditions.

_ The jury were permitted to return a verdict for plaintiff only in the event they found the defendants negligently caused or suffered (sic) said train to start without warning plaintiff, while she was in the act of boarding it, or when defendants knew she was, or would have known had they been sufficiently careful. If defendants caused the train to start while plaintiff was in the act of boarding it, and when they knew or ought to have known that fact, they were guilty of negligence; and would have been, even if they had warned her before the signal to the engineer was given; that is to say, to start a train which is standing, at a station to admit passengers, while a person who has not delayed unnecessarily is boarding it, is an act of negligence in itself. [Texas Ry. Co. v. Gardner, 52 C. C. A. 124; Norfolk Ry. Co. v. Groseclose’s Admr., 88 Va. 267.

The plaintiff’s right to a verdict having been made to depend exclusively on a finding that the train was moved while she was in the act of boarding it, the instruction about what circumstances would relieve defendants of the duty to warn her the train was about to move, was not necessary. Had the court submitted to the jury as cause for a verdict for plaintiff, neglect of the company’s employees to warn her the train was about to start, when she was approaching to get. on it, then, if it had been detained at the station for a time reasonably sufficient to enable intending passengers to get safely aboard, defendants would have had the right to an instruction in the nature of the one refused; but. not in the form it was drawn. As said above, in such a contingency the law did not bind the trainmen to warn her unless they knew, or had reason to believe she would attempt to take the train. [2 Moore, Carriers, (2 Ed.) sec. 50, p. 1240; Straus v. Railway Co., 75 Mo. 191; Clotworthy v. Railroad, 80 Mo. l. c. 224; Hatch v. Railway Co., 212 Pa. St. 29; Norfolk Ry. Co. v. Groseclose’s Admr., 88 Va. 267; Duty v. Railroad, 70 W. Va. 14; Bockelcamp v. Railway Co., 232 Pa. St. 66; Paulitsch v. Railroad Co., 102 N. Y. 280.]

III. The principal instruction for plaintiff laid the conductor, as well as the company, liable if he knew, or by the exercise of the high degree of care that a very prudent person would exercise under similar circumstances would have known, plaintiff was in the act of boarding the train when he caused it to start. That instruction submitted as causes for a verdict, against the conductor, two possible findings: First, that he knew when he started the train plaintiff was getting on; a fact that, of course, would make him responsible to her for the damages she suffered; for it would show he wantonly injured her; second, that'by using the high care a very prudent, person would have exercised, he would have known she was getting aboard. The latter hypothesis raises.a question which must be answered mainly on principle, for we have found no comment on it in text-books, and but one decision that is in point.

If the conductor was unaware, by reason of lack of due vigilance, of plaintiff’s position of peril when he signalled to the engineer to go ahead, his fault was one of omission; not of positive wrong, and, unless the duty of highest vigilance was by the law imposed on him as an individual and independently of his representing the railway company, there is much authority in this State, and elsewhere, for saying he is not liable to plaintiff; not liable for the non-performance of a duty growing out of his employment, though he would be answerable over to the company under the duty to it to use high care not to inflict injuries; and that was the measure, too, of the care the company was bound to observe. Instances like those where the law requires of both employer- and employee only ordinary care, present no difficulty; and of that character are all the cases we have examined, except one to be noticed presently. Everybody, regardless of any contract he may be under to render a particular service, has the duty imposed on him by law to be ordinarily careful, the circumstances considered; not to hurt other persons; and is responsible to any one who is harmed by a breach of that duty. Carriers of passengers-have been held, from time immemorial, to a higher degree of care for the safety of their passengers: and, in fact to the highest practicable care. This duty is placed upon them by the law from a motive of public policy. [Indianapolis Ry. Co. v. Horst, 93 U. S. 291.] In consequence of the rule, when a person acquires the status of a passenger, which he does by a contract with the carrier, he becomes entitled to the observance by the carrier of that unusual care to prevent him from being hurt while the relation of carrier and passenger continues. But a carrier’s employees are not under any contract with a passenger, whereby the ordinary care incumbent upon them not to hurt him, is lifted to a higher degree. And at this point the decried doctrine that an employee is not responsible to a third person for damage due to omitting some precaution by the employee while engaged in his task, leads to a just result, whether or not it is the best way to state the test of the employee’s liability. If the non-feasance, or neglect, was a precaution incumbent on the employee only by virtue of his contract of employment, the breach of said contract was not a breach of a duty owed to the third person, but one owed to the employer.

It is argued, and plausibly, that a carrier company can observe the highest care toward its passengers only through its employees, and therefore the latter are bound to use that much care. They are bound as between them and the company; but the question is whether their obligation extends to the passenger, so that an action lies in his favor against them in person for failure to practice the highest care. Their duty to do so arises from their relation to the company, and their obligation to use the highest practicable care is to it aud not to the passenger.

In Keep v. Indianapolis & St. Louis Railway Co., and Keep v. Union Railway and Transit Company, 9 Fed. 625, two cases that were consolidated and tried as one, the plaintiff was hurt in a collision of the train he was on with a gravel train. He had taken passage on the Indianapolis & St. Louis Railway from New York to St. Louis, and had been carried safely to East St. Louis. At the latter station the Union Railway & Transit Company was under contract with the other company to haul all the latter’s trains into St. Louis for a consideration. Otherwise stated, the Union Railway & Transit Company was an employee of the Indianapolis & St. Louis Railway Company for the hauling of trains between St. Louis and East St. Louis. "While drawing the particular train the plaintiff was on, the collision occurred; and at the trial it was necessary to instruct the jury concerning the degree of care each of the defendant railway companies was bound to observe for plaintiff’s safety; and the court instructed upon the matter as follows:

“The duties of the Indianapolis & St. Louis Railroad Company to the plaintiff as a common carrier, if the facts are as alleged, did not cease until the arrival of the train at St. Louis, although it may have entered into a contract with othei*s to furnish the motive power for hauling the train over the bridge and tunnel." If it was not one of the connecting roads for a through route, its liability ended at the termination of its route
“As to the Union Railway & Transit Company, its liabilities are not those of a common carrier. It had entered into no personal contract with the plaintiff, unless it was one of the common carriers in the through route. But the charter of the latter company does not make it a common carrier as to operations in East St. Louis, nor do any of the contracts produced. Hence the Union Railway & Transit Company is not liable to the plaintiff for any injury sustained, unless it was guilty of direct negligence or unsldlfulness, causing the said injury. If that company did, through such negligence or unsldlfulness, cause the injury alleged, it must respond in damages; otherwise, not.
“Thus, the jury will decide — first, did the plaintiff sustain any injury; and, if so, what is the amount of' damages to he awarded him? Second, whether the injury was sustained by plaintiff from the negligence of its agents. Third, as the liability of the Union Railway & Transit Company rests upon the degree of negligence of which it was guilty, whether its direct negligence or unskilfulness caused the injury. It was bound, not to the' extraordinary diligence required of a common carrier, but to the ordinary diligence and skill which its employment needs.” [9 Fed. l. c. 628.]

That case is like this one in the fact pertinent to the point in hand; that is to say, the Transit Company was an employee of a carrier of passengers, and a passenger having been injured and both companies sued, the inquiry as to the extent of the obligation of each to him to be careful for his safety, was presented. This instruction.was given by a judge of experience and distinction and, we think, was sound.

IY. Whether or not the court wrongly excluded the evidence of the utterance of plaintiff’s husband when he entered the last of the stores he visited, that he was in a hurry, as his train was at the station, is a close question we hiclino to the opinion the evidence was competent. Plaintiff had been anxiously awaiting her husband’s arrival and the latter’s exclamation tended to sustain the defendant’s contention that she waited too long after the train had stopped and tried, to get on board while it was moving. The statement was a spontaneous one, uttered where the station and train could be seen, only a short distance away, and was practically contemporaneous with the main event; or at least was close enough to it in point of time, and sufficiently connected with it, to be competent under the weight of authority. [1 Greenleaf, Evidence (16 Ed.), pp. 264, 265, sec. 162g; 4 Chamberlayne on Evidence, secs. 2992 et sec]., sec, 3015; 1 Wharton on Evidence (3 Ed.), secs. 259, 260; State v. Walker, 78 Mo. 380; State v. Kaiser, 124 Mo. 651, 656; Coll v. Transit Co., 180 Pa. 618; Mo. Pac. Ry. Co. v. Collier, 62 Texas, l. c. 320.] The two cases last cited are not materially different from this one, so far as the point in hand is concerned. In the Texas case, the plaintiff had been injured by the derailment of a train, and had testified that just before the accident a fellow passenger had commented on how short a time the train had been in passing from one station to another, a remark tending to prove it was running at a high rate of speed. The court of appeals held this testimony was properly received. The cited Missouri cases are closely in point, too.

V. This court and the other courts of review of the State, have never ’approved an instruction on the measure of damages which told the jury to consider, in estimating the damages, not only the proper elements by which to determine the damages to be awarded, but also all the other facts shown in evidence. They have refused to reverse judgments for the giving of such instructions when the true elements of damages were pointed out, on the theory that the jury understood they were to consider in computing the assessment of damages, only facts in evidence which were relevant to the question; or else thát nó facts were in evidence which would tend to increase unduly the assessment. In the present ease it was proved plaintiff was the mother of and rearing several children, some of whom were small and one an infant. The jury may have thought those were facts to be weighed on the issue of the amount to bo awarded. The latitude thus allowed a jury in estimating damages, is wrong, and may be prejudicial. A tendency is noticeable to introduce into instructions this broad language, probably in consequence of the fact that no case has been reversed for that reason. The practice is to be condemned; for no facts ought to be weighed in assessing damages, except those which tend to prove the actual amount of the damages. The verdict in the present case was so large the trial court deemed 'it necessary in the interests of justice, to call on plaintiff to remit nine thousand dollars; and in view of the remittitur and the extent of plaintiff’s injuries, we might pass over this error, had no other occurred prejudicial to defendants.

The judgment is reversed and the cause remanded.

PER CURIAM:

The opinion of Goode, J., in Division No. 1, is adopted as the opinion of Court in Banc,

All concur, except Woodson, J., not sitting


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    EX PARTE PHILLIP TAFT v. ALBERT L. SHAW. Superintendent of Municipal Farm of Kansas City.
    In Banc,
    November 20, 1920.
    1. HABEAS CORPUS: Unconstitutional Law: Jurisdiction. A person convicted and imprisoned under an invalid law or ordinance can test its constitutionality and validity by the writ of habeas corpus in the Supreme Court. An unconstitutional statute or ordinance is no law at all, and a court has no jurisdiction to base a judgment on a void law.
    2. -: Pacts Proved Against Petitioner. In a habeas corpus proceeding, the Supreme Court is not concerned in the proof made against the petitioner in the trial court by which he was convicted and imprisoned; it is only concerned in the jurisdiction or power of the trial court to act.
    3. -: Severable Ordinance: Invalid Parts. When the differenl provisions of an ordinance are severable, and not dependent upon each other, a part may be upheld upon habeas corpus and other parts declared invalid.
    4. ORDINANCE: Power of City. The only limitation upon the power of Kansas City to frame its own charter is that it must be consistent with and subject to the Constitution and laws of the State.

      5. -:-: Vagrancy,. Under the charter of Kansas City giving “to the city power to restrain and punish vagrants, mendicants, street beggars and prostitutes, and define who shall be considered and treated as vagrants,” the city has power to enact ordinances defining and punishing vagrancy. But such definitions must be consistent with the general statutes declaring what conduct shall constitute vagrancy.
    6. VAGRANCY: Definition: At Common Law. The statutes and ordinances have so frequently dealt with the subject of vagrancy, anfi they have made such extensions of the meaning of the word in order to protect society and maintain order and peace in congested cities, that its common law definition has been largely supplanted.
    . 7. -: Police Power: Limitations. Defining and punishing vagrancy is an exercise of the police power, which is a very broad, but not an unlimited, power. There is a limit to the things that may be done in the name of the police power. But it is also the least limitable of all the powers of government. In Missouri, the only limitation upon the legislative exercise of the power is the Constitution, and by it all legislative acts must be measured.
    8. -: -: Belongs to The State. The Legislature cannot surrender the police power of the State. Its exercise must be in the interest of the general welfare of the State or the municipality. Individual interests are subject to the general welfare, for without proper restrictions upon them there could be no such thing as organized society.
    9. -: Definition: Visible Means. There is no valid objection to the words “has no visible means of support” in an ordinance defining vagrancy. It is a term well understood and has definite and fixed meaning.
    10. -: -: Reasonable Effort: Indefiniteness. An ordinance seeking to define and punish vagrancy, which requires all persons in the city to show some “reasonable” effort to secure lawful employment, is void for indefiniteness and uncertainty. It does not state what substantive elements will make the effort "reasonable,” but leaves it to the judge or jury to say, and in effect permits them to enact an ordinance for the punishment of what they may reasonably or capriciously consider a crime.
    11. -: -: Within Purview of Statute. An ordinance' which in defining “vagrant” does not bring the elements of the crime within the purview of the statutory definition is, to the extent that it enlarges that definition, void. The ordinance to be valid must be consistent with the Constitution and general laws of the State. And Ordinance No. 33205 of Kansas City, which attempts to define and punish vagrancy, is inconsistent with the statute (Sec. 4789, R. S. 1909) in several material respects.

      12. -: -: Within Purview of Federal Cognizance. The or ' dinance of Kansas City declaring that any person “who shall become a member of any organization or association of individuals who are opposed to the United States prosecuting the present war,” or “who shall circulate or aid and abet in circulating literature directly intended to hinder the United States Government in the exercise of its war powers,” or “who utters seditious sentiments againsts the United States Government,” or “who aids or abets any person in the circulation of any writing, posters or circulars of any kind, intended to promote sedition, or disloyalty to the Government,” is “hereby declared to be a vagrant,” is void, because, in these four respects, it covers matters of Federal rather than State cognizance, and because these definitions conflict with the definition of a vagrant made by the statute (Sec. 4789, R. S. 1909).

      Habeas Corpus.

    Petitioner Discharged.

      Harold L. Mulks and Charles Owsley for petitioner.
    (1) Any court possessing the power and authority to issue the writ of habeas corpus has the power by means of such writ to investigate the constitutionality of a statute or ordinance upon which a judgment resulting in the imprisonment of the petitioner was obtained; and where the same is unconstitutional, the petitioner will be as much entitled to be discharged as if the judgment was based upon no apparent legal enactment. Ex parte Lucas, 160 Mo. 218; Ex parte Meet, 157 Mo. 527; Ex parte Walter Smith, 135 Mo. 224; Ex parte Knight, 41 So. 786; In re Smith, 143 Cal. 368; Stoutenberg v. Frazier, 16 App, D. O. 229, 48 L. E. A] 220; International Harvester Co. v. Commonwealth, 170 Kv. 41, L. E. A. 1918 D. 1004; Lewis v. Nelson, 26 Fla. 71; Moore v. Wheeler, 109 G-a. 62. (2) The police power of the State to puuish vagrancy rests upon a combiuation of three elements: (a) The absence of lawful means of support; (b) the wilful failure to secure lawful employment; and (e) the public exhibition of the same. The gist of the offence consists in the demoralizing influence of the public and notorious exhibition of habits of idleness, shiftlessness or immorality. Ex parte Branch, 234 Mo. 466; Freund on “Police Power,” sec. 99; In re Jordan, 90 Mich. 3. (3) If an act is so uncertain and indefinite as not to indicate the matter or thing to which it relates, it is invalid. When the Legislature undertakes to define by statute a new offense and provides for its punishment, it must express its will in language that need not deceive the common mind. A man should be able to know with certainty when he is committing a crime and if an act 'is sp uncertain as not to, indicate the matter or thing to which it relates, it is unconstitutional and invalid as being in violation of the constitutional provision that in all criminal prosecutions the accused shall be entitled to know the nature and cause of the accusation against him, and as being in violation of the eonstitional provision that the legislature power shall be vested in the Legislature, and as being in violation of the provision that no state shall deprive any person of life, liberty or property without due process of law. People v. Turner, 55 111. 280; Detroit Creamery • Co. v. Kinnane, 264 Fed. 845; State v. Ashbrook, 154 Mo. 375; State v. Rumberg, 88 Minn. 399; State v. St. Rys. Co., 146 Mo. 155; People y. Briggs, 193 111. 457; State v. Pattlaw, 91 N. C. 550; Johnson v. State, 100 La. 32; State v.Wentler, 76 Wis. -89; Tozer v. United States, 52 Fed. 917; Hewitt v. Board of Examiners, 148 Cal. 590; Ex parte Jackson, 45 Ark. 158; Cook v. State, 26 Ind. App. 278; United States v. Reese, 92 U. S. 214; Augustine v. State, 49 Tex. Crim. 59; State v. Mann, 2 Ore. 238; Czorra v. Board of Supervisors, 23 D... C. App. Cases, 443; 8 R. C. L. 58. (4) The courts of the United States have exclusive jurisdiction of all crimes and offenses cognizable under the authority of the United States, except where the acts of Congress provide otherwise. In other words, if Congress in the exercise of its constitutional power enacts a law making a particular act a crime and does not in the particular statute eon-fer jurisdiction upon the courts of the State to punish the particular offense, the jurisdiction of the Federal courts is exclusive, and state courts have no power to punish the particular offense or the acts or conduct which is embraced within the particular offense. Sec. 133, U. S. Compiled Statutes 1916, p. 841; Easton v; Iowa, 188 U. S. 220; Priggs v. Comm., 16 Pet. (41 IT. S.) 539; Comm. v. Felton, 101 Mass. 204; In re Ino, 54 Fed. 669 ; U. S. v. Buskey, 38 Fed. 99; In re Looney, 38 Fed. 101. (5) ’ The constitutional provision authorizing certain cites to adopt certain charters for their own government expressly limits the power to the requirements that the charter adopted must be consistent with and subject to the Constitution and laws of this State. State ex rel. v. Police Commissioner, 184 Mo. 109.

      E. M. Barber, I. M. Lee, Geo. W. Meyer and B. N. Mosman for respondent.
    (1) The action being one in habeas corpus, the only question before the court is one of jurisdiction. State ex rel. ,v. Dobson, 135 Mo. 12. (2) The rights conferred by Sec. 4, Art. II, Constitution of Missouri, are subordinate to the rights of society and to the police power of the State. State v. Addington, 77 Mo. 110; State ex rel. v. Beattie, 16 Mo. App. 131; St. Louis v. McCann, 157 Mo. 301; Kansas City v. Holmes, 247 Mo. 163; Lawton v. Steele, 152 U. S. 136; McQuillan, Muncp. Corp. secs. 890. 891. (3) Kansas City had the power to -pass the ordinance in question and to define vagrancy. Clause 26, Sec. 1, Art. Ill, Charter of Kansas City; Kansas City v. Neal, 49 Mo. App. 98. (4) What constitutes vagrancy? See 39 Cyc. 1108-1109; Gavin v. State, 96 Miss. 377; Freund, Police Power, sec. 99; Ex parte Branch, 234 Mo. 471; Hartman v. State, 119 Ga. 427; Lewis v. State, 3 Ga. App. 322; Morton v. Nelms, 118 Ga. 786. (5) Where different provisions of an ordinance are severable from and not dependent upon each other, part may he sustained and part held invalid. St. Louis v. Leissing, 190 Mo. 464; St, Louis v. Dairy Co., 190 Mo. 492; Water Co. v. Neosho, 136 Mo. 498; St. Louis v. Railway, 89 Mo. 44; Quinnette v. St. Louis, 76 Mo. 402; Rockville v. Merchant, 60 Mo. App. 365; State v. McFarland, 105 N. W. (Mich.) 187Cody v. State, 118 Ga. 784. (6) Kansas City had power to compel prisoners in the workhouse to labor, and to fix an allowance to such prisoners of fifty cents per day for such work. Clause 42, Sec. 1, Art. Ill, Charter of Kansas Citv, 1908; Sec. 16, Art. IX, Const. Mo.
   GRAVES, J.

In this court Philip Taft sued out a writ of habeas corpus, the purpose of which is to test the legality of his imprisonment under a judgment of the Criminal Court of Jackson County, rendered May 27, 1920. By such judgment he was fined $500 and committed, by a commitment in usual form, to imprisonment at the Municipal Farm of Kansas City for the non-payment of such fine.

The action began in the Municipal Court of Kansas^ City, and by defendant’s appeal reached the criminal court. The basis of the prosecution was Ordinance No. 33205 of Kansas City, the first section of which reads:

“Section 1, — Any person who, in this ci'tv, lives idly, has no visible means of support, who is physically able to perform mental or manual labor, and who has no regular employment, and is not able to show reasonable effort andjn good faith to secure some lawful employment, and who neglects or refuses to accept and engage in some lawful trade or occupation to support himself; or who shall become a member of any organization or association of individuals who are opposed to the United States prosecuting the present war; or who shall circulate or aid and abet in circulating literature directly intended to hinder the United States Government in the exercise of its war powers; or who utters seditious sentiments against the United States Government; or -who aids or abets any person in tbe eirenlation of any writing, posters or circulars of any kind, intended to promote sedition, disloyalty to the Government, or sabotage or incendiarism, is hereby declared to be a vagrant, and upon conviction thereof shall be subject to a fine of not less than one dollar, nor more than five hundred dollars, or by an imprisonment of not less than one day, nor more than twelve months, or by both such fine and imprisonment. ’ ’

The information in the Municipal Court becomes material, and that document reads:

“State of Missouri, County of Jackson — ss.
“On information, Daniel O’Byrne, Assistant City Counselor, within and for Kansas City, County of Jackson, State of Missouri, complains that on or about the 4th day of May, A. D. 1920, one Phillip Taft, within, the corporate limits of Kansas City, and within the territorial limits of Division 1 of the Municipal Court of Kansas City, on Main Street near Sixth, did then and there, unlawfully live idly, had no visible means of support, although physically able to perform mental or manual labor.
“Said person had no regular employment and was not able to show reasonable effort and good faith to secure some lawful employment.
“Said person did then and there neglect or refuse to accept and engage in some lawful trade or occupation to support himself.
“Said person was then and there a member of an organization or association of individuals who are opposed to the United States prosecuting the present war.
“Said person did then and there circulate or aid and abet in circulating’ literature directly intended to hinder the United States Government in the exercise of its war powers.
“Said person did then and there utter seditious sentiments against the United States Government.
“Said person did then and there aid or abet another person in the circulation of writings, posters, or circulars intended to promote sedition, disloyalty to the Government or sabotage or incendiarism.
“Said person was then and there a vagrant.
“All in violation of Section 1, of Ordinance of Kansas City, Missouri, No. 33205, approved June 12, 1918.
“Daniel 0’Byrne,
“Assistant City Counselor.”

The petitioner not only charges that the ordinance under which he was prosecuted and convicted is unconstitutional, but he also challenges that provision of the city charter which authorizes the imprisonment'for failure to pay the fine, and which allows the prisoner but fifty cents per day credit for the time he worked.

To our writ due return was made by the officer having the petitioner in custody under commitment from said criminal court, and to this return petitioner demurred, so that the issues were duly made. Upon application the petitioner was admitted to bail during the pendency of this suit, if he filed the required bond.

I. One convicted and imprisoned under an invalid law or ordinance can, by our writ of habeas corpus, test the constitutionality and validity of such law or ordinance, notwithstanding the judgment of the trial court, judgment is without jurisdiction, because of the invalidity of the ordinance or law upon which it is based, and under the writ of habeas corpus the prisoner may be discharged, notwithstanding the judgment and the commitment thereunder. This rule has been finally settled in this State. [Ex parte Smith, 135 Mo. l. c. 228 et seq: Ex parte Joseph Neet, 157 Mo. l. c. 537.]

In the Smith case, supra, at page 229, Sherwood, J., with the full concurrence of the court, said:

“So that it may now be regarded as the established doctrine of this court that it will interfere by means of the writ of habeas corpus to look into and investigate the constitutionality of a statute or ordinance on which a judgment which results in the imprisonment of a petitioner is founded. And if it be true, as must be true, that an unconstitutional law is no law, then its constitutionality is open to attack at any stage of the proceedings and even after conviction and judgment; and this upon the ground that no crime is shown and therefore the trial court had no jurisdiction; because its criminal jurisdiction extends only to such matters as the law declares to be criminal, and if there is no law making such declaration, or, what is tantamount thereto, if that law is unconstitutional, then the court which tries a party for such an assumed offense, transcends its jurisdiction and he is consequently entitled to his discharge, just the same as if the non-jurisdiction of such court should, in any other manner, be made apparent.’’

This concisely stated doctrine, we see no reason to chang’e or modify. If a law or ordinance is invalid the trial court is without jurisdiction for the prosecution of the alleged violation of law. There can be no violation of something which does not exist, and an unconstitutional law or ordinance is as if it had never existed. The rule is so fully settled that discussion at this time is but to encumber the opinion.

II. The ordinance before us was passed June 10, 1918, and the world’s great conflict perhaps accounts for some of the provisions thereof. Some of them are at least unusual for a municipal ordinance.

There can be no question as to the right of the State, or the municipality as the agency of the State, under the police power, to punish vagrancy, or a person guilty of vagrancy. Counsel are not apart upon this general question. Counsel do differ as to what constitutes vagrancy, and as to the power of either the State or the municipality to make some of the things in this ordinance named, acts of vagrancy. To get a thorough view of this matter the ordinance before us must be separated into its component parts. When we do this, it will be seen that there are five distinct classes of commissions or omissions, considered sufficient to constitute a person a vagrant, and thereby under the ban of the ordinance. These classes we have indicated by the figures in the parentheses which follow below:

“(1) Any person who, in this city, lives idly, has no visible means of support, who is physically able to perform mental or manual labor, and who has no regular employment, and is not able to show reasonable effort and in good faith to secure some lawful employment, and who neglects or refuses to accept and engage in some lawful trade or occupation to support himself; (2) or who shall become a member of any organization or association of individuals who are opposed to the United States prosecuting the present war, (3) or who shall circulate or aid and abet in circulating literature directly intended to hinder the United States Government in the exercise of its war powers; (4) or who utters seditious sentiments against the United States Government; (5) or who aids or abets any person in the circulation' of any writing, posters or circulars of any kind, intended to promote sedition, disloyalty to the Government, or sabotage or incendiarism.”

Now of these in their order. The first clause makes a vagrant out of a person when he lives idly, having no visible means of support, and has no regular employmeilb when such person is physically able to perform mental or manual labor, and neglects to engage in some lawful trade or occupation to support himself, and is not able to show reasonable effort in good faith, to secure some lawful employment. We have underscored the word reasonable, because of this a further point is made. The first three paragraphs of the information, covered the first paragraph of this ordinance. In this, a proceeding in habeas corpus, we are not concerned in the proof made against the petitioner. We are only concerned in the jurisdiction or power of the court to act. [State ex rel. v. Dobson, 135 Mo. l. c. 12 et seq.] And as we have indicated in the paragraph, supra, if there is a valid statute or ordinance under which the court acted, the jurisdiction or power is compíete. On the other hand if the law or ordinance is invalid or void, there is absence of jurisdicton, and habeas corpus is an appropriate remedy.

We should, before discussing the several portions of this ordinance, further say that when the different provisions of an ordinance are severable, and not dependent upon each other, as is clearly the case here, in the five provisions of this ordinance, a part may be upheld and other parts declared invalid. [St. Louis v. Liessing, 190 Mo. l. c. 488-9.]

By Section 16 of Article IX of the Constitution, Kansas City was given the right to frame its own charter, “consistent with and subject to the Constitution and laws of this State.” [St. Louis v. Liessing, 190 Mo. l. c. 480; Kansas City v. Oil Co., 140 Mo. 458.]

The only limitation on this constitutional right, is that such charter must be consistent with and subject to the Constitution and laws of the State. Exercising this right Kansas City provided in its charter (1908), Clause 26, See. 1, Art. III, that such city should have the power “to restrain and punish vagrants, mendicants, street-beggars, gamblers and prostitutes, and define who shall be considered and treated as vagrants.” The ordinance before us was an attempt to exercise the power of defining and punishing vagrants. In the case of Kansas City v. Neal, 49 Mo. App. 72, it was ruled, under similar charter provisions,' that the said city could define and punish vagrancy. Our Constitution authorized the city to adopt a charter for its local self-government. The first clause of the ordinance passed under this charter provision will be considered now. We are not so much concerned in what may have been the common law meaning of the word “vagrant,” for in 39 Cyc. p. 1109, it has been well said:

“It is within the power of the Legislature to define, subject to certain broad limitations, what a vagrant is, and the statutes of the United States and England having so frequently dealt with the subject of vagrancy, the common law on the subject has become largely superseded.”

In Ex parte Strillmatter, 58 Tex. Cr. l. c. 157-8, the court said:

“Much attention is directed in the brief of counsel to the common law definitions of vagrancy. However interesting as a mere matter of learning these views may be, it has not infrequently been held by many courts that the statutes, both in England and America, have so much and so frequently dealt with the subject of vagrancy, that the common law on the subject has become unimportant. [29 Am. & Eng. Enc. Law, p. 568; People v. Forbes, 4 Park Crim. (N. Y.) 611.] That it is within the power of the Legislature in this State to define, subject to certain broad limitations, what is a vagrant, can admit of no sort of doubt, and statutes which have classed prostitutes, professional gamblers and others of that class as-such, have always been upheld. With the growth of the State and the congestion in our large cities where the idle, the vicious and the depraved congregate around many public places, it was essential to the peace of the State and .the protection of society that some further extensions of this definition should be made. ’

Defining and punishing vagrancy is the exercise of the police power of the State, which ' is a very broad power, but not an unlimited one. By this we mean, that there is a limit to things which may be done in the name of the police power. This portion of this ordinance makes one a vagrant who lives idly and has no visible means of support, and who is without regular employment, and has failed to make any reasonable effort to secure employment.

This does' not strictly comport to our measure of the common law definition of “vagrant.” [Ex parte Branch, 234 Mo. l. c. 470.] But the .real question is, not whether the legislative definition conforms to the common law. definition, but is the legislative definition a proper exercise of the-pólice power. .Statutes and ordinances (in matter of the definition of “vagrant”) have both taken from and added to the common law definition of the term. Thus by onr statute, Sec. 4789, R. S. 1909, a person is made a vagrant, if he “shall be engaged in any unlawful calling whatever”. . . . Throughout this Union the states and cities have defined vagrancy, but not always within the common law views of the term. So that the first real question is whether or not the first definition of a vagrant given in this ordinance is a proper exercise of the police power of the State. Can the State say that one who lives idly and has no visible means of support, and who, though physically able, has no occupation and neglects or refuses to engage in some lawful trade or occupation, is a vagrant? Whilst the police power of a state is hard to define in succinct terms, it is the least limitable of all the powers of government. In 6 Ruling Case Law, page 183, it is said:

“The police power is an attribute of sovereignty, possessed by every sovereign state, and is a necessary attribute of every civilized government. It is inherent in the states of the American Union and is not a grant derived from or under any written constitution. It has been said that the very existence of government depends on it, as well as the security of social order, the life and health of the citizen, and the enjoyment of private and social life and the beneficial use of property. It has been described as the most essential, at times the most insistent, and always one of the least limitable of the powers of goverment.”

Following the above excerpt will be found a full discussion of the different phases of this power and its possible limitations. In Missouri the only limitation oE legislative power is the Constitution, and it is by this instrument that we must measure all legislative acts. The Legislature cannot surrender the police power of the State. The exercise of the police power must be in the interest of the general welfare of the State or the municipality. Individual interests are subject to this general welfare of society. Without such rule there can be no organized society. So that barring the alleged indefinite character of the term “reasonable effort” (a matter for later notice) found in this first clause of the ordinance, we fail to see any improper exercise of the police power in the definition of vagrant as found in the ordinancé before us.

It is urged that the idleness and invisible means of support must, be publically exhibited before the general .welfare is hurt or affected. This is not necessarily so. The idleness is a menace to society per se. Idleness breeds law violators. The review of the case law in 6 Ruling Case Law, supra, sufficiently covers the question, and we need not go further. Unless otherwise restricted, the police power of the city authorized the definition of a vagrant found in this first clause of. the ordinance. Idleness without visbile means of support, with ability to work an,d no effort to secure work is sufficient, if the municipality, in the exercise of its police power so desired to' define a vagrant, provided other restrictions do not prevent.

III. Ordinances may be bad for vagueness and indefiniteness. It is urged that the terms “visible means of support,” and “reasonable effort” as used in the ordinance make it bad. There is no substance in the objection to the first clause quoted, supra. “ Yisi-. ^le mearLS support” is a term well understood and has a definite and fixed meaning. The term “reasonable effort” is more objectionable. Statutes and ordinances which fix crimes, or quasi-crimes, should so fix them that there could be no uncertainty. They should be so worded that one could read them, and know whether or not he was violating law. They should not be so worded as to leave their substantive elements to the caprices of either judge or jury. In other words the law should be complete and definite. What would be “reasonable effort” under this law is left a question for the court or jury. What in the minds of one' court or jury might he “reasonable effort” might not be so considered by another court or jury. Each trial tribunal would be making its own ordinance. This will not do for a law or ordinance criminal in eharactef. In the instant case the petitioner might have, in good faith, thought that his efforts amounted to “reasonable effort,” but the trial tribunal thought otherwise. The whole fabric of this clause turns or 'might turn upon the words “reasonable effort” and in our judgment they are too indefinite to maké a good ordinance of the character here involved. The use of the word “unreasonable” in defining an offense has arisen in the construction of the Interstate Commerce Act. [Tozer v. United States, 52 Fed. l. c. 919.]

, In the Tozer case, the court had under consideration the 3rd section of the Interstate Commerce Act, which prohibited and punished undue and unreasonable preference or advantages in the charging of rates. Mr. Justice Brewer, the then Circuit Justice of the Eighth Circuit, wrote the opinion and said:

“But, in order to constitute a crime, the act must be one which the' party is able to know in advance whether it is criminal or not. The criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty. In the case of Railway Co. v. Dey, 35 Fed. Rep. 866, 876, I had occasion to discuss this matter, and I quote therefrom as follows: ‘Now, the contention of complainant is that the. substance of these provisions is that, if a railroad company charge's an unreasonable rate, it shall be deemed a criminal, and punished by fine, and that such a statute is to.o indefinite and uncertain, no man being able to tell in advance- what in fact is, or what any jury will find to he a reasonable rate. If this were the construction to be placed upon this act as a whole, it would certainly he obnoxious to complainant’s criticism, for no penal law can he sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what be may not do under it. In Dwar. St. 652, it is laid down that it is impossible to dissent from the doctrine of Lord Coke that the acts of Parliament ought to be plainly and clearly, and not cunningly and darkly, penned, especially in legal matters. [See, also United States v. Sharp, Pet. C. C. 122; The Enterprise, 1 Paine, 34; Bish. St. Crimes, sec. 41; Lieb. Herm. 156.] In this the author quotes the law of the Chinese Penal Code, which reads as follows: '“Whoever is guilty of spirit of the laws, though not a breach of any specific part of it, shall be punished at least forty blows; and when the impropriety is of a serious nature, with eighty blows.” There is very little difference between such a improper conduct, and of such as is contrary to the statute qnd one which would make it a criminal offense to charge more than a reasonable rate. See another illustration in Ex parte Jackson, 45 Ark. 158.’ Applying that doctrine in this case, and eliminating the idea that, the through rate is a standard of comparison of the local rate, there is nothing to justify a verdict of guilty against, the defendant. Judgment will therefore be reversed, and the cause remanded for further proceedings.”

The same question has more recently arisen in a number of the Federal courts in construing the 4th section of the amended Lever Act. [Detroit Creamery Co. v. Kinnane, 264 Federal, l. c. 849 et seq.] In this case, like the Tozer case, the word condemned is “unreasonable ’ ’ rather than ‘ reasonable, ’ ’ but the one is just as indefinite as the other. In discussing that word in the Lever Act, the court, at page 850, among other things, said:

“These and other questions which readily suggest themselves naturally and perhaps necessarily enter into a consideration of the nature of the proper test or standard by which the criminality of any act. under this statute must be determined. To the statute itself we look in vain for answers to any of such questions. It furnishes no means for the guidance of courts, juries, or defendants in determining when or how the statute has been violated. No standard or test of guilt has been fixed. We are left to the uncontrolled and necessarily conjectural judgment, or rather conclusion, of each particular jury, or perhaps court, before which the accused in any given ease may be on trial for his liberty. Making, as it does, the question of guilt dependent upon this mere conclusion or opinion of the court or jury as to whether the rate or charge involved be just or unjust, reasonable or unreasonable, I cannot avoid the conclusion that this statute is too vague, indefinite, and uncertain to satisfy constitutional requirements or to constitute due process of law.”

Among the cases cited in the opinion is the very recent case of United States v. Cohen Grocery Co., decided by our late companion, Judge Faris, now of the U. S. District Court for the Eastern District of Missouri. See 264 Fed. l. c. 223, where our former brother, in his usual forceful language, in discussing the Lever Act, supra, said:

“The definitions, boundaries, and limits of a crimiaial statute ought, at least, to be so clear that no man in his right mind can be in doubt when he is violating and when he is not violating such statute. There ought not to be necessary any chopping of logic or intricate reasoning from cause to effect in order to decide the question of criminality. If this law is to stand, then no longer would there seem need of defining crimes by separate statutes. All that will be necessary will be to pass a single sweeping statute, declaring that any person who shall commit any unjust or unreasonable act, or a wrongful or criminal act, shall be deemed guilty of a felony, and leave it to the jury to determine what is unjust, or unreasonable, wrongful, or criminal. Neither is justification for the indefiniteness and uncertainty which inhere in the statute under discussion to be found in any alleged necessity to mitigate a present and crying .evil, which all right-thinking men must depreciate and abhor; for it would seem.that it might simply have been declared that a sale of any necessary for a stated percentage increase in' • price beyond cost and carriage should be a punishable crime. At least, such a law would not be objectionable on the ground here urged. That it would have been arbitrary may be conceded. But the statute here is just as arbitrary, and to its arbitrariness is added an indefiniteness, vagueness, and uncertainty which is dangerous, beyond excusing, to the property and liberty of innocent men. For these reasons, and for others, which I might add, if leisure allowed, I think the demurrer to the indictment ought to be sustained.”

The language of the amended Lever Act, discussed in these cases, is: “It is hereby made unlawful for any person ... to make any unjust or unreasonable rate or charge, in handling or dealing in or with any necessaries.”.

We are forced to the conclusion that this first clause of the ordinance before us is bad for the reasons above suggested.

IV. There is another and further defect in this first clause of the ordinance under review — i. e. it does not define the term “vagrant” within the purview of our statutory definition. As said in a previous paragraph the states have made -their own definitions of vagrants. This definition is nearly .as varied as the states are in number. We have also said that these statutory provisions supplant the common law upon the same subject. The Missouri definition of a vagrant is found in Section 4789, Revised Statutes 1909, which reads:

“ (1) Every person who may be found loitering around houses of ill-fame, gambling houses, or places where liquors are sold or drunk, without any visible means of support, or (2) shall attend or operate any gambling device or apparatus, or be (3) engaged in practicing- any trick or device to procure money or other thing of value, or (4) shall he engaged in any unlawful calling whatever, and every. (5) able-bodied married man who shall neglect or refuse to provide for the support of his family, and every person found tramping or wandering around from place to place without any visible means of support, shall be deemed a vagrant, and upon conviction thereof, shall he punished by imprisonment in the county jail not less than twenty days, or by fine not less than twenty dollars, or by both such fine and imprisonment.”

Upon careful analysis it will he found that this statute makes six classes of persons, vagrants. In the discussion of the ordinance before us, we are only interested in three of these classes i. e. (1) “every person who may he found loitering around houses of ill-fame, gambling houses, or places where liquors are sold or drunk, without any visible means of support” (2) “or shall be engaged in any unlawful calling whatever” and (3) “and every person found tramping or wandering from place to place without any visible means of support.”

It is clear that the definition of vagrant given in the first, clause of the ordinance does not measure up to the standard fixed by either of these three classes named in the statute, nor to the other three, so far as they are concerned. This first clause of the ordinance makes want of visible means of support one essential in its definition, hut it fails to couple this element with the other element of the statutory definition, i. e. that such person must be loitering around named places. Nor does the ordinance definition measure up to the third clause quoted last above, which is in fact the 6th class named in the statute. This class, as made by the statute, contemplates tramps, who, having- no visible means of support, tramp or wander from place to place, town to town, or city to city.

Nor is this first, clause of the ordinance an attempt to define a vagrant within the second class, quoted, supra, because there is nothing indicated as to an unlawful calling. In fact we quoted this clause of the statute, because it would need some note in disposition of other clauses of the instant ordinance, and not because it had any bearing upon the first clause of the ordinance, the matter now under discussion.

In Sarah Way’s Case, 41 Mich. l. c. 301, Campbell, C. J., has well said:

“While we are not required in the present case to attempt any complete definition of vagrancy, yet it seems necessary in referring to the statutes, to suggest that the common council cannot enlarge the term or include in it anything that is not vagrancy under the statutes.” ,

In Kansas City v. Hallett, 59 Mo. App., l. c. 163, Gill, J., said:

“It is not necessary to invoke the terms of the Constitution to announce that the by-laws of a municipal corporation in order to be of any validity, must be consistent with its charter and the general statutes of the commonwealth creating it. This is a well understood principle of the common law. Such ordinances .or bylaws must not be repugnant to- the legislative policy of the State, as manifested by its general enactments. [1 Dill, on Municipal Corporations (4 Ed.), section 329; Tiedeman on Municipal Corporations, section 150.]”

In saying that it was not necessary to invoke the Constitution, Judge Gill had reference to Section 16 of Article IX of the Constitution of 1875, under which the Kansas City Charter was framed.

In St. Louis v. De Lassus, 205 Mo. l. c. 583, Judge Gantt had before him an ordinance of the City of St. Louis, and the constitutional provision was Section 23 of Article IX, instead of Section 16 of Article IX, as in the Kansas City case. So far as requiring the charter of cities to be in harmony with the State Constitution and the general statutes upon the subject, the provisions are the same. In the De Lassus case the opinion of Gill, J., of the Kansas City Court of Appeals, met with our express approval, and Judge Gantt proceeded to measure the ordinance under review by the state statutes on the same subject in order to determine whether or not there were inconsistencies or conflicts. .So we must, do in the case at bar. By Section 4789, Eevised Statutes 1909, the State has defined “vagrants.” No municipality in the State can lessen or broaden that definition. As suggested in the De Lassus case, supra, the city is not limited to the fines fixed by the statute, but the policy of the ordinances must not conflict with the policy of the State, as fixed by the state statute. We have pointed out above just, wherein the definition of vagrant as found in the first clause of the ordinance fails to measure up to the definition of the statute. These differences make conflicts between the ordinance and the statute, and for this further reason the first clause of the ordinance under consideration is void.

Y. The 2nd, 3rd, 4th and 5th clauses of the ordinance are clearly void, and for two substantial reasons. First, they cover matters of Federal rather than State cognizance. In the second place these definitions of a vagrant conflict with. Section 4789, Eevised Statutes 1909, mentioned and discussed in a previolls Por^orL this opinion. The only clause in this statute which would furnish even an excuse for the 2nd, 3rd, 4th and 5th clauses of this ordinance, is the clause which says “or shall be engaged in any unlawful calling whatever.” The unlawful callings in the statute has reference to such under State laws and not under Federal laws. So these clauses of the ordinance must likewise fall. AVe therefore rule that the whole of the ordinance is void.

In such case it. becomes our duty to discharge the petitioner from his illegal and unlawful confinement. The petitioner is discharged.

All concur; Blaik, J., in the result.