author: GRAVES, P. J.

text:
    ARTHUR L. YOUNG v. JAMES K. LUSK et al., Receivers, Appellants.
    Division One,
    July 18, 1916.
    1. NEGLIGENCE: Interstate Carrier: Showing. Where the petition charged that the defendants were operating a railroad between the State of Missouri and other named states, an answer admitting this allegation is an admission that defendants are interstate carriers, and brings plaintiff within the purview of the Federal Employer’s Liability Act. And the same thing is established by evidence to the effect that plaintiH was working as an airbrake inspector in a gravity railroad yard, from which cars were constantly passing into another state and were constantly being brought from said state into the yards.
    2. -: -: Federal Act. Switching Cars: Failure to Warn. The Federal Employers’ Liability Act (35 U. S. Stat. at L. p. 65), declaring that every common carrier engaged in interstate commerce “shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier” makes liable the carrier for injury to an airbrake inspector in the yards due to the negligent switching of cars by the carrier’s trainmen or due to their negligent failure to warn him of the approach of cars.
    3. -: Airbrake Inspector: Shunting Cars: No Warning. An airbrake inspector, at his post of duty at the rear end of stationary cars, required to be among the cars and inspect the airbrakes as the cars are shunted in, is entitled to warning when other cars are driven against the stationary cars; and it is negligence to drive those cars over him without warning.
    4. -: Assumption of Risk. If the negligence charged i not a violation of the Safety Appliance Act, the defense of assumption of risks may be a defense under the Federal Employers’ Liability Act, if the facts authorize it. But the servant does not assume the risk of his master’s negligence; and if his injuries are due to his master’s failure to warn him when proper regard for his safety requires such warning, the defense of the assumption of risks is not available.
    5. -: Warning: Blue Flag Rule': Waiver. Where a rule required employees working around stationary cars to put up a blue flag, evidence by an airbrake inspector of cars being constantly shunted in upon the tracks where he was required t'o work, that the rule was generally not observed and -that the superintending officer had told him not to try to observe the rule, is sufficient to submit the question of a waiver of the rule to the jury, and such waiver being established a failure to observe the rule does not bar a recovery.
    6., -: Excessive Verdict. Where the injuries consisted of the bare fact of- an amputated left arm of an employee whose wage was $2’.40 per day, a verdict for $12,000 is too large by $4,000.
    Appeal from St. Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge.
    Affirmed (condition ally).

      W. F. Evans, E. T. Miller and A. E. Haid for appellants.
    (1) Plaintiff made no ease, (a) Plaintiff and defendants were not at the time of the injury both engaged in interstate commerce. Thompson v. Railroad, 262 Mo. 468; Railroad v. Behrens, 233 U. S. 473; Federal Emp. Liability Act, 35 U. S. Stat. at L., p. 65, as amended by 36 U. S. Statutes L. 291. (b) The record fails to show any negligence on the part of defendants. The negligence charged is not a violation of any Federal statute enacted for the safety of employees. The negligence charged, is failing to warn plaintiff of the approach of cars when defendants should have known of plaintiff’s position of peril. Defendants were under no obligation to warn plaintiff. Degonia v. Railroad, 224 Mo. 564; Nivert v. Railroad, 232 Mo. 626; Rashall v. Railroad, 249 Mo. 509 ; Gabal v. Railroad, 251 Mo. 257; Hitz v. Railroad, 152 Mo. App. 687; Ginnochio v. Railroad, 155 Mo. App. 163; Aerkfetz v, Humphreys, 145 U. S. 418; Connelley v. Railroad, 201 Fed. 54; Boldt v. Railroad, 218 Fed. 367. (e) Plaintiff as-sinned the risk of the injuries sustained by him. Nivert v. Railroad, 232 Mo. 626; Railroad v. Horton, 233 U. S. 492; Connelley v. Railroad, 201 Fed. 54; Boldt y. Railroad, 218 Fed. 367. (2) Plaintiff’s instruction number 1 is erroneous, (a) There was no evidence that the cars which struck the three stationary cars were moved with rapidity against those cars, (b) There was no evidence that the cars on Track Four, or that the train on the lead track, were at the time plaintiff was injured, engaged in interstate commerce. Thompson v. Railroad, 262 Mo. 468; Railroad v. Behrens, 233 U. S. 473. (c) The instruction erroneously declared the law to be that the switching crew should have known of plaintiff’s perilous position and warned him of the approach of the cars. Degonia v. Railroad, 224 Mo. 564; Nivert v. Railroad, 232 Mo. 626; Rashall v Railroad, 249-Mo. 509; Gabal v. Railroad, 251 Mo. 257; Aerkfetz v. Humphreys, 145 U. S. 418; Boldt v. Railroad, 218 Fed. 367. (3) The instruction given of the court’s own motion was erroneous. The instruction should have been • given as requested by defendants in their refused instruction, (a) The blue flag rule, which was the basis of the instruction, was a just requirement, and plaintiff should have complied therewith. Mason v. Railroad, 161 Mo. App. 610; Railroad v. Pool, 160 U. S. 438. (b) The court should not have submitted to the jury the question of the waiver of the rule. If the question of waiver should have been submitted the court should have instructed the jury what facts would constitute' a waiver. State v. Hardelein, 169 Mo. 579; McNamara v. Transit Co., 182 Mo. 676; Commission Co. v. Hunter, 91 Mo. App. 333; Nulton y. Croskey, 111 Mo. App. 18; Joyce v. Transit Co., Ill Mo. App. 565; Ayers v. Railroad, 124 Mo. App. 422; State ex rel. v. Allen, 124 Mo. App. 465. (4) The verdict is grossly excessive, and bears no relation to the injuries sustained. The jury disregarded the contributory negligence of the plaintiff.

      Joseph A. Wright for respondent.
    (1) The plaintiff is entitled to the ‘benefit of the Federal Employers ’ Liability Act of April' 22, 1908. Railroad v. Seale, 229 U. S. 156; Pedersen v. Railroad, 229 U. S. 146; Railroad v. Carr, 238 U. S. 260; Railroad v. Zachary, 232 U. S. 248; Walsh v. Railroad, 223 U. S. 6; Seaboard Air Line v. Koenecke, 239 U. S. 352; Railroad v. Glinn, 219 Fed. 148; Lombardo v. Railroad, 223 Fed. 427; Railroad v. Russell, 209 Fed. 795; Law v. Railroad, 208 Fed. 869. (2) The negligence of defendants is established by the evidence and the case properly submitted to the jury. Seaboard Air Line v. Koenecke, 239 U. S. 352; Kame v. Railroad, 254 Mo. 196; Koerner v. Car Co., 209 Mo. 141; Baker v. Railroad, 147 Mo. 158; Colasurdo v. Railroad, 180 Fed. 832; Railroad v. Johnson, 161 Ky. 824; Railroad v. Hennessey, 177 Ind. 64; Dowd v. Railroad, 170 N. Y. 459; Doing v. Railroad, 151 N. W. 579; Anable v. Railroad, 138 App. Div. (N. Y.) 380; Brady v. Railroad, 184 Mass. 225; Canon v. Railroad, 101 Iowa, 613; Merrill v. Railroad, 29 Utah, 264. (3) The issue of assumption of risk, if defendants were entitled under the evidence to have same submitted to the jury, has been passed on by the jury under an instruction most favorable to defendants. Fish v. Railroad, 263 Mo. 106; Seaboard Air Line v. Plorton, 239 U. S. 180 ; Railroad v. Wright, 235 U. S. 376 ; Seaboard Air Line v. Horton, .233 U. S. 492; Railroad v. Hall, 232 U. S. 94; McGovern v. Railroad, 235 U. S. 389. (4) The issue joined upon the blue flag rule was without error submitted to the. jury, (a) The blue flag rule may be waived. 3 Labatt on Master & Servant, par. 1138; Devoe v. New York Central, 174 N. Y. 1; An-able v. New York Central, 138 App. Div. (N. Y.) 380; Brady v. Railroad, 184 Mass. 225; Merrill v. Oregon Short Line, 29 Utah, 264. (b) The instruction on the blue flag rule was proper, and defendants are not in position to complain thereof. Norris v. Railroad, 239 Mo. 695; King y. St. Louis, 250 Mo. 501; State ex rel. v. Reynolds, 257 Mo. 19; Sang v. St. Louis, 262 Mo. 454; Stotler v. Railroad, 200 Mó. 107; Bank v. Lee, 182 Mo. App. 185; Crow v. Lutz, 175 Mo. App. 427; McMahon v. Macabees, 151 Mo. 522; Griffith v. Royal Arcanum, 182 Mo. App. 644; Estel v. Railroad, 56 Mo. 282; Ins. Co. v. Hauck, 83 Mo. 21; Jordan v. Moulding Co., 77 Mo. App. 572; Hopkins v. Modern Woodmen, 94 Mo. App. 402.
   GRAVES, P. J.

— Action for personal injuries brought in the State circuit court in St. Louis, under the Federal Employers’ Liability Act of April 22, 1908. The negligence charged is best stated in the language of the petition, thus:

“That at about 4:45 p. m. on said 27th day of August, 1914, plaintiff, in the discharge of his duties as such employee, was trying to turn the angle-cock of the airbrake equipment of a freight car and at the northeast of a string of three freight cars on one of the tracks in said Frisco freight yards, and whilst so engaged a switching crew of defendants consisting of an engineer, fireman, foreman and two brakemen, while acting within the scope of their duties, and while so employed by defendants in said yards, and while both said switching crew and plaintiff were actually engaged as such employees in carrying on of commerce for defendants as such receivers between the State of Missouri and the other States of the United States hereinbefore named, in violation of an Act of Congress approved April 22, 1908, entitled ‘An act relating to the liability of common carriers by railroad to their employees in certain cases,’ carelessly and negligently made a (flying) switch with about three or four other freight cars coupled together, causing said cars to be moved with rapidity after the switch engine had been uncoupled therefrom along and down the track where the said car was standing upon which plaintiff was working, as aforesaid, and carelessly and negligently caused said string of ears thus being moved to strike the string of cars standing on said track at the southwest end thereof, thereby causing plaintiff to be violently struck by the end of said car upon which he was working and thrown on the tracks, and his left arm run over by one of the wheels and trucks, and so multilated as to necessitate its immediate amputation and bruising and contusing his back and shoulders.
“That said cars were thus switched and run by said switching crew upon said string of cars where plaintiff was working without any warning to plaintiff, and when they knew, or by the exercise of ordinary care might’have known, that plaintiff was at said northeast end of said car and string of cars standing on said track and in a position of peril and danger while discharging his said duties as an employee of defendants by reason 'of switching and running of said cars.”

The answer, after making certain formal admissions, pleads three defenses: (1) contributory negligence; (2) assumption of risk, and (3) violation of a designated rule of the company.

Upon a trial before a jury the plaintiff had a verdict for $12,000 upon which judgment was duly entered, and from such judgment, defendants, as receivers of what is called the “Frisco Railroad,” have appealed.

The assignment of errors runs the usual gamut in cases of this character, and the evidence, so far as materia], can best be stated in . connection with the points for discussion.

I. Plaintiff, aged 47 years at date of accident, . as a railroad man of many years experience. At the time of accident he was engaged by defendants as air inspector in the yards of the St. Louis & San Francisco Railroad Co. at or near Chouteau Ave., St. Louis, Mo. His duties were to couple up the air appliances as cars were being put in a train, and after the train was made up and the engine attached, to test the air on the completed train. When not thus engaged he did some minor repair work. He had worked in this capacity some months prior to his unfortunate injury.

Defendant urges that plaintiff’s case failed for several reasons, and that their demurrer to the testimony should have been sustained. Of these in their order.

II. First it is urged that plaintiff failed to show that he was so engaged at' the time of injury as to bring him within the Federal law, supra. This contention cannot be sustained. The petition charged that the defendants were operating a railroad between the State of Missouri and other named states, and the answer admitted this portion of the petition. The defendants were therefore admittedly interstate carriers.

The yards in which plaintiff was at work was what is known as a gravity yard. Through it ran a “lead” track, and from this “lead” track there were a number of tracks (some 26 or 27) connected therewith by means of switches. The surface of the ground so sloped that cars could be pushed in on these several tracks, and would move down them without, power, or by mere gravity. At the time of the accident plaintiff was working with cars on track four, having just left track five. As to the use of these several tracks he testified:

i£Q. How long is this Chouteau Avenue yard, Mr. Young — can you tell us? A. Why, this yard I was working in, the in-bound yard, is something about a quarter or half-mile long, hardly a half; somethiug between that; I believe Track 4 held the biggest string of cars, I believe forty-six cars.
“Q. Were you working in-bound or out-bound? A. Working on the outbound track, but I worked in-bound and out-bound; trains would come in, and we would make them up there' on that other track, and they would go through; dead freight came there to this other yard.
“Q. In what track were you working when you were hurt? A. No. 4.
“Q. What was that used for? A. Dead freight going east that was used for.
“Q. And in these Frisco tracks or yards were certain tracks assigned for certain railroads and certain places in the makeup of out-bound cars? Or freight? A. Yes, sir.
“Q. What different tracks were on the outbound, if you remember? A. Why, four, five, six, seven* eight, nine, fourteen, seventeen, fifteen and sixteen; fifteen and sixteen the stuff was westboud, stuff went west.
“Q. ’The other tracks were east-bound? ‘A. Yes, sir; ten, eleven and twelve were mostly empty cars, went to the house for loading.
“Q. Track 4, what was it used for, out-bound? A. The cars were all carded ‘bridge’ on there; all went to Illinois,' and on different roads after they got to Illinois.
“Q. What bridge did that go over? A. Eads bridge.
“Q. Did the Frisco put a label on cars, any distinct label, going over Eads bridge? A. Yes, sir; always had a green card they marked ‘ Bridge. ’
“Q. What’s the last words on -the check or tag? A. Just ‘bridge,’ then- it stated what road after it got across, but the green card was marked ‘To Bridge.’
“Q. Do you know what was the name of the railroad on the side of this car where you were working when you got hurt? A. No. I never noticed where it was going or what road it was delivered to; it was delivered to the bridge, I didn’t notice what bridge.
“Q. The name on the side of the car? A. Oh, that was Houston & Texas Central.
“Q. Do you know where that railroad operates? A. In Texas.”

Later on he further says:

“Q. Don’t they receive cars on tracks 4, 5 and 6, and deliver to industries on this side of the river, I mean? A. Not that I know of; I never seen them billed that way. Everything on four was always carded ‘Bridge’ unless sometimes they were not using it, and throw a lot of junk on there. . .
“Q. Did-you look at the label on all three of the cars? A. Yes, all three on there; they were carded ‘ Bridge. ’
“Q. Where were those labels placed on the ears? A. On the side of the cars, supposed to be placed on the north end of' the car, on the west side they are supposed to be.
“Q. When did you see labels on all three of the cars? A. I saw them when I came up there.”
Witness Allen W. Harvey, among other things said:
“Q. Those yards up there are used for the receiving of freight cars from all over the United States, aren’t they? A. Yes; I expect in the course of every few minutes there is a car goes from there to every point in the United States in these yards.
“Q. Cars go in and out, of those yards for many states, don’t they? Different states in the Union? A. Yes, I guess they do.”

Cars for the bridge crossed the river and. went to the State of Illinois. The above was ample evidence upon which to submit, under proper instructions, the question as to whether or not the plaintiff and the railroad were engaged in interstate commerce at the time of the accident. On this question the demurrer was well overruled.

• III. The next contention of the defendants is thus stated in the brief:

“The record fails to show any negligence on the part of defendants. The negligence charged is not a violation of any Federal statute enacted for the safety of em- , .. - , ployees. The negligence charged is failing to warn plaintiff of the approach of cars when defendants should have known of plaintiff’s position of peril. Defendants were under no obligation to, warn plaintiff.”

This contention, like the tongue of the serpent, is forked. We have (1) no negligence shown as against defendants, (2) that the negligence charged does not fall within the purview of the Federal act, and (3) that the negligence charged in the petition is a failure- to warn plaintiff of the approach of the cars.

The latter statement can be shortly disposed of by a reading of the petition. The petition charges two acts of negligence, and the defendants are in error when they say that a failure to warn the plaintiff is all the negligence charged. The previous portion of the petition charged a negligent switching of the cars by the switching crew.

Whether the negligence charged falls within the purview of the Federal act is best determined from the wording of that act. 35 U. S. Statutes at Large, page 65, so far as applicable here, reads:

“That every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in' damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, tracks, roadbed, works, boats, wharfs, or other equipment.”

The italics are ours. Both acts of negligence (if they be negligence) charged in this petition, were acts of the agents or employees of the defendants, and fall fairly within the terms of this statute. .The switching of the cars was an act of the servants and employees of defendants. The failure to wain, if such failure is negligent, is an act of the servants or employees of the defendants. We think that the negligence charged is snch as falls within the purview of the Federal law. We mean by this that the' negligent handling of-cars by agents and employees of a railroad which results in injury to another employee is actionable under this law. And further that there might be cases where the failure to warn, would likewise be actionable under this law. The ‘real question is whether or not the evidence discloses negligence in either of the two particulars charged. That we take next.

IY. Whilst the language of the petition is broad enough to cover two acts of negligence, as above indicated, yet plaintiff did not see fit to so submit his case in the trial court. The matter was thus submitted, by instruction, below:

“And if the jury further find and believe from the evidence that while he was so engaged a switching crew of defendants, in charge of the engine and cars mentioned in the evidence, and while acting within the scopé of their duties, and while so employed by defendants in said yards, care-, lessly and negligently caused and suffered said cars to be moved with rapidity against or into the cars on which plaintiff was working, thereby causing said cars to run against the plaintiff and knock him down and injure the plaintiff; and if the jury further find and believe from the evidence that said switching crew, by the exercise of. ordinary care, should have known that plaintiff was working on said car in a situation of danger from injury by the movement of said cars, and failed to warn said plaintiff of the approach of said cars, and that by a timely warning of the approach of said cars plaintiff could, by the exercise of ordinary care, have avoided injury therefrom; and if the jury* further find and believe from the evidence that at said time and place said switching crew and plaintiff were actually engaged in carrying interstate commerce between the State of Missouri and the State of Illinois; and if the jury find and believe from the evidence that plaintiff’s injury, if any, was not the result of the ordinary risks or dangers assumed by him in his contract of employment by defendants, then your verdict will be for plaintiff.”

This instruction did not permit a recovery "on mere proof of a negligent switching. of the cars at a rapid rate, but bottoms plaintiff’s right to recover on failure to warn. So whilst defendants’ counsel is in error in saying “the negligence charged is failing to warn plaintiff,” yet the submission below was on that theory. The instant verdict, if sustained, must be sustained on the idea (1) that a failure to warn was negligence under the circumstances, and (2) that such failure was the proximate cause of the injury.

, The evidence shows that \yhilst plaintiff was working upon track five, three cars were put in upon track four. These cars had their brakes set to keep them from moving on down the track. Plaintiff went to the end car (then located the greatest distance from the switch) for the purpose of turning an angle-cock and was in the act of turning it when injured. He was kept there longer than usual because the angle-cock was rusted. Whilst he was there the switch crew put in another car, and on this car was an employee, by the name of Harvey. Harvey had been with the first three cars when they were put in and had put on their brakes. Harvey was told to remain with this single car, that others were coming. This he did, and the switching crew cut off two more cars from the train on the lead track and switched them in on track four. These cars struck the car upon which Harvey was standing, and he then put on the brakes on that car, and started to a tank car next to it, when the three cars he was then with, struck the three stationary cars (at the end of one of which, plaintiff was working) and moved them, so that the plaintiff was knocked down and run over by the car, inflicting the injuries sued for herein.

There is no evidence of the speed at which these cars were running when they struck the car upon which Harvey was standing, nor at the time they struck the three stationary cars. The only circumstances is that the three stationary cars were moved further down the track some 315 feet by the impact.

There is evidence in the rpeord of what is known as the “blue flag rule.” This rule required employees working around stationary cars to put out a blue flag, and then other cars would not he pushed against them. There is evidence tending to show that this rule was impracticable, so far as the use of the blue flag by an air inspector was concerned, and that the superintending officer over the plaintiff in the service of the company had told plaintiff not to try to use the blue flag. That it could not he successfully used in his work. The evidence discloses that cars were being continuously shunted in upon the tracks from the lead track, and that it was plaintiff’s duty to go among these cars upon the several tracks and test and couple up the air appliances.

There is also evidence tending to show the general nonobservance of this “blue flag rule.” There is also evidence that there was no means provided on the cars by which warning bell or whistle could be given.

The question is what was the duty of defendants, under these facts'? The duties of plaintiff required him to be among the ears standing upon the tracks. Likewise to make np its trains defendants had to run other cars in upon the tracks when and where plaintiff was working. The facts of this case distinguishes it from a case where a section hand is working upon an open track. Here the very duties of the plaintiff required him at times to be in position where he could not observe the shunting in of cars upon the tracks where he was working. He had to examine and repair the air appliances, and couple the same between the cars. If, through Rowie, the general foreman, he was directed (as testified to by plaintiff), not to use the blue flag to notify the parties upon the incoming cars that he was working upon the ears, then it would seem that a notice or warning of some kind would be required of defendants. They cannot place a man at work between stationary cars, and without notice or warning shunt in other cars, and thus maim and cripple him. The facts of this case bring it within the line of car repairers’ cases. It more nearly falls within the rule of these cases. This rule was reiterated, and in some respects, in my judgment, extended, in the more recent case of Koerner v. St. Louis Car Co., 209 Mo. 141.

In this case it will not -do to say that defendants or their servants did not know that plaintiff was in a place of peril. Both defendants and their employees knew that these were stationary cars ahead of them when they shunted in these cars. They knew that the duty of plaintiff required him to be there, and they should have taken some precaution to obviate his injury. [Williams v. Wabash Ry. Co., 175 S. W. l. c. 903; Kame v. Railroad, 254 Mo. 175.] We conclude that the facts of this case, as presented by plaintiff’s side of the case, were sufficient to make out a ease of negligence for failure to warn.

V. Nor is there substance in the contention that plaintiff assumed the risk. The charge in the petition is not such as to bar the defense of assumption of risk, because under the Federal act “such employee shall not be helfl to' have assumed, the risks of his own employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.” In all other cases the defense lies, if the facts authorize it. [Fish v. Railroad, 263 Mo. 106.]

Here the negligence charged was not a violation of any Safety Appliance Act, and hence plaintiff’s case does not fall within the exception made by section 4 of the Federal Act of 1908. But the facts of this case do not sustain the, doctrine of assumption of risk. A servant never assumes the risk of the master’s negligence. He assumes the usual and ordinary risk of the employment, but to these cannot be added the negligence of the master. A failure to warn was the neglect of the master. [Koerner v. Car Co., supra.]

VI. It is insisted that plaintiff’s failure to comply with the blue flag rule bars his recovery. Whether or not that rule had been waived by the defendants was properly submitted to the jury and upon ample evidence to sustain their verdict. This question therefore drops from the case.

VII. What we have said disposes of some contentions as to 'refused instructions. We think there is but one question of moment left, and that is the amount of the damages. Defendants urge that under all the facts it is excessive. We are inclined to think that it is excessive. The plaintiff testified briefly as to his injuries. The wheels of the ear practically amputated his left arm between the shoulder and elbow. The doctors completed what little work was left for the amputation. The record discloses the bare fact of an .amputated left arm and no more. It showed that plaintiff was earning $2.40 per day at the time. No aggravated case of injury is shown. We are of opinion that $8000 would be more' nearly right in this case. If therefore the plaintiff will in ten days, remit the sum of four thousand dollars, as of the date of the judgment, the judgment thus left for eight thousand dollars, as and of the date of its original entry, will for said eight thousand dollars, be affirmed. If plaintiff declines to enter such remittitur for four thousand dollars, the judgment is reversed and cause remanded. It is so ordered.

All concur.


source: Caselaw Access Project

author: BROWN, C. PER CURIAM.

license: Public Domain

text:
    UNION PACIFIC RAILROAD COMPANY v. THE PUBLIC SERVICE COMMISSION, Appellant.
    Division One,
    July 18, 1916.
    1. PUBLIC SERVICE COM MISSION: Powers Relating to Interstate Commerce: Fees. Where an interstate railroad com- - pany has applied to the Public Service Commission for authority to issue its bonds secured by a mortgage on its properties and has obtained an order authorizing it to do so, and while retaining.the benefits of the order denies its liability to pay the fees which the statute prescribes, and the only matter for determination is the amount of the fees that can be charged for the order, the questions of the power of the commission to take cognizance of the issue of bonds by an interstate railroad and of its jurisdiction over interstate commerce are not for decision.

      ■2. -Incumbering Real Estate by Foreign Corporation: Limitations Prescribed by Incorporating State. It is incompetent for a foreign State under whose laws an interstate railroad company has been incorporated, to direct how its real estate within the jurisdiction of this State shall be conveyed, incumbered or diverted from the use to which it has been devoted by our laws.
    3. -: Advantages of Validation of Bonds. There are many reasons, aside from an escape from the penalties prescribed by the Public Service Commission Act for issuing bonds without authority from the commission, why an order from the commission validating and permitting the sale of a large issue of bonds secured oh the real estate of the interstate railroad company, situated in this State and elsewhere, would be of great value to the company in selling the bonds, although the amount of the bonds far exceeds the value of its real estate in this State.
    4. -: Fees to be Charged for Bond Issue: Tax. The fees fixed by the Public Service Commission Act to be charged a corporation for validating its bonds, are primarily to reimburse the State for the maintenance of the commission,'and are in no sense a tax in the ordinary meaning of the term. The statute affords the only rule for the guidance of the commission for fixing the amount of the fee, in any case; and where the assessment for a certificate authorizing the issue of bonds is made in exact accordance with the legislative direction, that assessment must stand, even though the applicant for the certificate is an interstate railroad company and the amount of validated bonds far exceeds the value of its properties situated within this State.
    5. -: -: Paid Under Protest. Where statutory fees are paid by an interstate railroad company to the Public Service Commission for an order authorizing it to issue and sell its bonds, such order being made in response to its own application therefor, the payment of the fees cannot be avoided, though made under written protest.
    Appeal from Cole Circuit Court. — Row. J. G. Slate, Judge'.
    Reversed and remanded ■ (with- directions)

      Wm. G. Busby and Alex Z. Patterson for appellant.
    (1) The circuit court committed reversible error in finding that respondent was not barred and estopped from denying the authority and capacity of the appellant to approve respondent’s bond issue, after it had expressly recognized such authority and capacity by its application and proceeding for such approval and by its formal acceptance of appellant’s certificate of approval. 8 Cyc. 791; 6 Ruling Case Law, pp. 94, 95; State v. Collins, 225 Mo. 633; State v. Seebold, 192 Mo. 720; Sheppard v. Barron, 194 U. S. 553; Ficlden v. Shelby County, 145 U. S. 1; Mfg. Co. v. Garland, 124 U. S. 581; State v. Railroad, 75 N. H. 327; White v. Manning, 46 Tex. Civ. App. 298; Ferguson v. Landrum, 5 Bush (Ky.), 230; Gans v. Railroad Co., 114 Iowa, 713; Hansford v. Barbour, 10 Ky. 515; State v. Stone, 46 La. Ann. 147; Weir v. Railroad, 18 Minn. 155; Railroad v. Railroad, 123 Iowa, 543; Hudson v. Brown, 154 N. Y. Supp. 131; Green County v. Lydy, 172 S. W. 376; Lewis v. Chamberlain, 139 Pac. (Ore.) 571; In re Devlin v.. Judah Co., 107 Pac. 583. (2) Section 57 of the Public Service Act applies to both domestic and foreign railway corporations, since it, together with the other four sections of the Public Service Commission Law relating to the regulation by the commission of ■the issuance, sale and holding of bonds and stock by railway corporations, all have the same general purpose, and in construing one the others should be read in connection with it, as together constituting one law creating a uniform and connected system. Sections 54, 56, 57, 58 and 59, Public Service Commission Law; Curtwright v. Crow, 44- Mo. App. 563; Swinney v. Railroad, 59 Ind. 205; Smith v. People, 47 N. Y. 330; 36 Cyc. 3351. (3) The sections of the Public Service Commission Law relating to regulation of issuances, sales and holdings of bonds, stock and other securities by interstate carriers are not unconstitutional as violative of the commerce clause of the United States Constitution. Eailroad v. Georgia, 135 Ga. 545; Eailroad v. New York, 165 U. S. 625; Laird v. Railroad, 121 Md, 179.

      R. W. Blair and I. N. Watson for respondent.
    (1) The respondent is not estopped from questioning the amount of the fee because the payment was made under duress and was involuntary. Ex parte Young, 209 U. S. 123; Railroad v. Tucker, 230 U. S. 340; Trust Co. v. Eailroad, 216 Fed. 225; Eailroad v. O’Connor, 223 U. S. 280; Swift Company v. United States, 111 U. S. 22; Ins. Co. v. Herriott, 80 N. ’W. 665. (2) Section 57 of the Public Service Commission law applies only to domestic corporations. Tel. Co. v. Kansas, 216 U. S. 27; Railroad v. Pennsylvania, 136 U. S. 114. (3) Sections 21 and 57 of the Public Service Commission Law are unconstitutional and void insofar as they are construed to apply to corporations engaged in interstate commerce: (a) As being in violation of the commerce clause of the Constitution by the imposition of an illegal burden upon interstate commerce; and (b), because violative of the fourteenth amendment to the Constitution and its due process of law clause as in effect taxing property situated beyond the jurisdiction of the State. Fargo v.' Michigan, 121 U. S. 230; Ratterman v. Tel. Co., 127 U. S. 411; Eailroad v. Pennsylvania, 136 U. S. 114; Crutcher v. Kentucky, 141 U. S. 47; Allen v. Pullman Co., 191 U. S. 171; Tel. Co. v! Massachusetts, 125 U. S. 530; Pullman Co. v. Pennsylvania, 141 U. S. 18; Tel. Co. v. Taggart, 163 U. S. 1; Maine v. Eailroad, 142 U. S. 217; Tel. Co. v. Kansas, 216 U. S. 1; Transit Co. v. Kentucky, 199 U. S. 194; Eailroad v. O’Connor, 223 U. S. 280; Laird v. Railroad Co., 121 Md. T79; Halsey & Co. v. Merrick, 228 Fed. 805; Bracey v. Darst, 218 Fed. 482; Wm. R. Compton Co. v. Allen, 216 Fed, 537; Transportation Co. v. Doyle, 210 Fed. 173. (4) Sections 21 and 57 of the Public Service Commission Law should be construed so as to sustain in part their constitutionality by applying them only to property situated within the State and to corporations not engaged in interstate commerce.
   BROWN, C.

-The Union Pacific Railroad Company is a Utah corporation. Its principal office is in New York City. It owns and operates about three thous- and five hundred mil.es of railroad in the States of Iowa, Nebraska, Wyoming, Utah, Colorado, Kansas and Missouri, its main lines extending from Kansas City, Missouri, and Council Bluffs, Iowa, by way of Cheyenne, Wyoming, to Ogden, Utah. It was constructed more than twenty-five years ago and has been used for the transportation of freight and passengers from, to, through and between those states. It has about six-tenths of a mile of main track in Missouri, extending from the Kansas state line to the old Union Depot in Kansas City, and also has side tracks, freight house and other terminals upon its own lands in said city, all being of a value which it estimates at $3,058,893.29. The book value of its entire property investment on June 30, 1914, was $281,-057, 730.06.

Of date June 1, 1908, it executed a “first-lien refunding mortgage” of all its property, securing a proposed issue of two hundred million of first-mortgage four per cent bonds, one hundred millón. of which were to be used in refunding' a like amount outstanding of old first-mortgage bonds. None of . the refunding bonds were issued, leaving the first mortgage still in force as a first lien. Of the remaining one hundred million, sixty-five million eighty-five thousand six hundred and forty dollars had been issued prior to June 1, 1910. On September 4, 1914, the company made application to the Public Service Commission of Missouri for permission to issue $31,848,900 more of bonds secured by said new mortgage, to reimburse it for expenditures made upon the property for purposes authorized by the mortgage, $124,930.38 of which had been expended upon the Missouri property. On September 22, 1914, the appellant commission, after a hearing, made its order, granting a certificate authorizing the issue of said bonds as applied for, taxed-the amount of its fee to be charged for the issuance of said certificate at the sum of $10,962.25, which was the amount provided by the terms of section 21 of the Public Service Commission Act of March .17, 1913, on the full amount of bonds covered by -said application. On the next day the secretary of the commission transmitted copies of the order to respondent’s attorney at Topeka, Kansas, accompanied by its statement of the amount of fee taxed therefor as above stated, which order was afterward accepted by respondent in writing as follows: “Comes now Union Pacific Railroad Company, by A. L. Mohler, its president, duly authorized, and hereby accepts the order of the commission, dated September 22, 1914, in the above entitled cause, and agrees to obey the terms of said order.” The respondent paid the said sum of $10,962,25, the amount of the fee so assessed, after offering to pay the sum of $125 based upon the proportion the amount so expended in Missouri bore to the whole amount of the bonds to be issued, which offer was refused by the commission. It then offered to pay $250, the minimum fee authorized by the statute, which was also refused. At the' same time it made the following'protest in writing:

“Union Pacific Railroad Company hereby pays under protest the sum of $10,962.25, being the amount of fees assessed and demanded for certificate authorizing the issue by said company of $31,848,900, face value, of additional first lien and refunding mortgage bonds.
“Protest is made upon the grounds:
“1st. That said assessment is not authorized by the Public Service Commission Law of the State of Missouri, approved March 17, 1913, under which it purports to have been made; and,
“2nd. That if such assessment is authorized by said statute, said statute and said assessment are in conflict with the Constitution of the United States and the amendments thereto, in that they impose á burden and tax on the interstate business of said company, and a burden and tax upon said company’s property beyond the limits of the State of Missouri.
“And you are hereby notified that this payment is made involuntarily and under duress, and without waiving the assertion and claim that the assessment is illegal, unauthorized and void, and such payment is made solely to escape the penalties prescribed and to prevent the revocation of the certificate issued herein, and to enable said company to issue and sell the ■ bonds referred to in said certificate which are necessary to the carrying on of the business as a common carrier.
“You are further notified that a petition for rehearing of the decision fixing the fees herein at the sum of ten thousand nine hundred and sixty-two dollars and twenty-five cents ($10,962.25) will be immediately filed and such further proceedings will be taken as are necessary to recover such sum less the sum of one hundred and twenty-five dollars, this day tendered as the legal fees herein, and you are further respectfully notified not to disburse the money hereby paid until the legality of the fees are finally determined. ’ ’

It then immediately filed its motion for a rehearing upon said assessment of the fee, which was overruled by respondent and the record was then taken by writ of review as provided in section 111 of the Public Service Commission Act, to the circuit court for Cole County, where, upon hearing, it was considered and adjudged that the order of respondent “ fixing the fee for the issuance of bonds by the plaintiff Union Pacific Railroad Company, amounting to $31,848,900, at the sum of ■ $10,962.25, was and is unreasonable and unlawful,” and the said order was therefore set aside by the circuit court, which fixed the fee to be paid by the respondent at $250, the minimum fee provided by said section 21 of the.act, and remanded the cause to the appellant commission, with directions to enter its order fixing the fee at that 'amount.

It is from this order that the present appeal is taken.

I. The respondent railroad company has furnished us with an elaborate argument as to the power of the Public Service Commission, under the 0£ tJle statute which created it, to take cognizance of the issue of these bonds, and also upon the power of the General Assembly to confer such jurisdiction, as affected by certain provisions of the Federal Constitution relating to interstate commerce and the property rights guaranteed by the first section of the Fourteenth Amendment to that instrument. However interesting these questions may be, we must not lose sight of the nature and scope of the proceeding in which they are presented.

It was instituted by the presentation to the appellant commission of an elaborate petition setting forth at length the organization of the respondent, its financial condition and the purpose for which it desired to ’issue the bonds in question, and asking authority of the commission for that .purpose. It does not question the constitutionality of the provision of the Public Service Commission Act which the petitioner was invoking for that purpose, nor intimate that the commission was without authority to grant it the desired relief. What it wanted was such authority as the commission could grant under the act, for the purpose, as it now explains, not only of protecting itself and its agents from penalties provided in the act, but to give value to the securities by such evidence of their validity' and security as the inquiry and action of the commission might afford. The respondent obtained and accepted the coveted order, and made no attempt to have it vacated or modified in respect to the authority it granted, but while retaining its benefits denies its liability to pay the amount which the act prescribes as compensation to the State for the issue of the certificate. Even its motion for a rehearing before the commission is confined solely to the assessment of the fee, so that both parties agree that the only question in this appeal is whether the respondent should be required to pay the sum of $10,962.25 as assessed by the commission, or $250, as determined by the circuit court by the judgment from which this appeal is taken. The respondent has elected, without protest, to submit itself to the jurisdiction of -the commission, and is satisfied with the judgment of the circuit court. It desires to obtain the' endorsement of the appellant commission as cheaply as it eeu, and the price is the only thing with which we have to deal.

II. It is true that respondent now suggests that it would not have applied for this or<^er frut for the stringent provisions of the Public Service Commission Act. This may be true, but we can see in the record many reasons why it might have desired the endorsement of the State as to this security even had no penalty been imposed by the act. It has more than three million dollars worth of real property in the State acquired by authority of a statute which imposes the condition that it shall be subject to all the duties, liabilities and provisions of the laws of this State concerning railroad corporations as fully as if incorporated in this State. [R. S. 1879, sec. 790.]. It was incorporated under the laws of Utah, from which it takes its general powers. While we have no doubt that the Congress of the United States might constitute corporations in the exercise of its constitutional powers with reference to commerce between the States, we do not think it has ever been contended that it might carry the laws of one State into the jurisdiction of another without giving them its own authority by re-enactment. It is incompetent for Utah under any guise to direct how real property within the jurisdiction of this State shall be conveyed, incumbered, or diverted from the use to which it has been devoted by our laws. As we said in the late case of De Lashmutt v. Teetor, 261 Mo. 412, l. c. 433-4: “It is not to be conceived that any government would permit the title to the lands which constitute the foundation and define the territorial limits of its sovereignty, to depend upon the operation of the laws of any foreign state or nation. Real estate transfers of every description, whether by act of the parties or by operation of law, depend, for their validity and effect, upon the laws of the jurisdiction in which the property is situated.” In this case it is sought to incumber this three million dollars worth of property by a mortgage of thirty-one million dollars and its validity and conformity to the provisions of our own laws would evidently receive valuable support from the sanction of the State through its own agency, at least so far as the Missouri security goes. In this particular case a property of the book value of two hundred and eighty-one million, of which the Kansas City terminal was a part, was already incumbered with mortgages to secure bonds amounting to more than one hundred and sixty-five million dollars, to which this thirty-one million was to be added. Its capital stock outstanding consisted of mor.e than two hundred and twenty-two million dollars of common stock and about one hundred million of preferred stock. The bonds in question •were to go into the treasury of the company to reimburse it for moneys that it claimed to have expended during the preceding five years for betterments, but whether this money had comé from its earnings or from speculation or from former issues of bonds and stocks neither the lawyers before the commission nor its auditor who was present knew. The common stock had while this thirty-one million dollars was being expended, paid dividends amounting to one hundred million dollars, while the preferred stock had paid dividends amounting to twenty million dollars. Under these circumstances who shall say that it was not of interest to the purchaser of these securities, as well as to the State, whether these betterments had been paid for from capital already applicable to that use or from earnings, and the opinion of the commission, expressed in its order, that the bonds came fairly within the provision of the mortgage would not be of advantage in their disposition?

III. The fee fixed by law for this inquiry is primarily to reimburse the State for the maintenance of the commission . . and is m no sense a tax m the ordinary meaning of that term. The Legislature has seen fit to distribute this burden upon a plan having reference to the value and importance of the services, which are highly technical in their nature. The matter lay in its constitutional discretion, and the plan adopted was clearly within that discretion and is embodied in section 21 of the act, which, so far as it refers to this particular fee is as follows:

“The commission shall charge and collect the following fees. . . . For certificate authorizing an issue of bonds, notes or other evidences of indebtedness, one dollar for each thousand dollars of the face value of the authorized issue, or fraction thereof, up to one million dollars, and fifty cents for each one thousand dollars over one million dollars and up to ten million dollars, and twenty-five cents for each one thousand dollars over ten million dollars, with a minimum fee in any case of two hundred and fifty dollars.” [Laws 1913, p. 567.]

The assessment was made in exact accordance with this legislative direction, which affords the only rule for the guidance of the commission. The powers of the commission having been invoked and exercised under the act which created it, we must look to the act for the terms imposed. The assessment of the commission must, therefore, be sustained.

IV. We have already held that the respondent, having without protest, or question, availed itself of the privileges and immunities incident to compliance with the Public Service Act at the expense of the State, cannot now deny the existence of the power which it invoked, for the sole purpose of avoiding the payment of the fee fixed by the Legislature for the same services before it requested their performance. We have also held that this fee was fixed by law in the reasonable exercise of the legislative discretion, and is therefore reasonable and proper, and must now be paid. It remains to notice in a general way, the cases cited by the respondent.

These may be divided into four classes: (1) those like the Missouri case of Westlake & Button v. St. Louis, 77 Mo. 47, in which we properly held that where a water rate greater than that permitted by law had been paid under business duress, the excess might be recovered back; (2) those cases in which equity is invoked on the ground that the remedy at law is rendered burdensome and dangerous by the pains and penalties by which it • is jeopardized; as in the late cases, of which Ex parte Young, 209 U. S. 123, is typical; (3) those cases in which it is sought to enforce such excessive penalties; as in Railway v. Tucker, 230 U. S. 340; and (4) those cases in which, as in Railway v. O’Connor, 223 U. S. 280, it is sought to recover back illegal taxes paid with protest under duress of the pains and penalties and business annoyance and injury which might result from permitting them to remain apparent charges against property. It is plain that such cases have no relation to a ease in which it is sought to avoid paying to the State the statutory fee for services performed at the request of the complaining party, relying upon its own judgment as to their legal necessity or desirability.

Tbe judgment of tbe circuit court for Cole County is reversed and tbe cause remanded to that court with directions to affirm tbe action of tbe Public Service Commission in assessing tbe fee to be paid by tbe , respondent at tbe amount of $10,962.25.

Railey, C., not sitting.

PER CURIAM.

— Tbe foregoing opinion of Brown, C., is adopted as tbe opinion of tbe court.

All the judges concur except Woodson J., not sitting; Bond, J., in result.


author: RAILEY, C. PER CURIAM.

text:
    NORTH KANSAS CITY LEVEE DISTRICT v. HILLSIDE SECURITIES COMPANY, Appellant.
    Division One,
    July 18, 1916.
    1. LEVEE DISTRICT: Taxation of Owner’s Land Without Hearing. The land within the proposed levee district whose owner was not named in the articles of association, did not enter his appearance, was never served with summons or notice of any kind, was not mentioned in the decree of incorporation, nor his land described therein, cannot be charged with benefit taxes levied to pay the costs of ditches' and levees therein, unless by his conduct he has waived his right to object to the taxation of the land or to have it excluded from the said district.
    2. -: -: Prima-facie Case. Notwithstanding it may be conceded that the levee district makes a prima-facie case against a landowner for benefit taxes by offering in evidence a certified tax bill, the defendant sti'l 'has the right to show that he never had his day in court when the district was incorporated and never was afforded an opportunity to be heard upon the question of whether his lands would be benefited by the construction of the ditches and levees and whether they should be excluded from the district, for such a showing overthrows the prima-facie case.
    S'. -: -: Waiver: Agreement. A landowner who has never been made a party to the proceeding to incorporate a levee district, or summoned or given an opportunity to be heard, does not waive his right to be heard and have determined the question of whether his lands have been or will be benefited by the ditches and levees, by entering into an agreement with the district to enter his appearance in the original proceeding for the purpose of having damages assessed by condemnation for his land taken and also “in the proceedings for the formation of the said levee district which have already been had,” if said condemnation proceedings are not begun within the time stipulated, and for that reason he terminates the agreement, without entering his appearance.
    4. -: -: -: Condemnation Proceeding Begun. And if such landowner is brought into court for the sole purpose of assessing his damages by condemnation for his land taken for levees and ditches, and such proceeding is dismissed because of a wrong description of the land, he cannot thereby be held, when sued on a tax bill, to have waived his right to have been made a party to the incorporation proceedings and to have had a hearing as to whether his lands should have been included in the district or were benefited; and having been denied such a hearing, and having not waived his right thereto, a judgment against him for benefit taxes cannot stand.
    Appeal from Clay Circuit Court. — Hon. Frank Divilbiss, Judge.
    Reversed.

      Lathrop, Morrow, Fox & Moore, Cyrus Crane and Martin E. Lawson for appellant.
    (1) The lands sought to be charged with the tax in controversy weré not incorporated within the plaintiff levee district, • and hence not subject to this tax. The Hillside Securities Company, the appellant herein (defendant below), was the record owner of the lands in question at the time the .proceeding to institute the levee district was begun. It was not made a party to that action and has never been made such a party thereto, nor was it ever served with process. The statute authorizing the formation of levee districts expressly provides and requires that the owners of lands sought to be incorporated in the district, who do not sign the articles of association, shall be made parties to the proceeding and process served upon them so that each may have his day in court to show why his lands should not be embraced within the district. Therefore, the defendant was not bound by the proceeding to incorporate its lands within the district and its lands are not incorporated therein. Art. 7, Chap. 122, R. S. 1899; Art. 9, Chap. 41, R. S. 1909; Sec. 8251, R. S. 1899; Sec. 5496, R. S. 1909; Sec. 8252, R. S. 1899; Sec. 5497, R. S. 1909; Sec. 8253, R. S. 1899; Sec. 5499, R. S. 1909; State ex rel. v. Bates, 235 Mo. 286. (2)- The doctrine of estoppel has no application under the undisputed facts in this case.

      Kenneth McC. DeWeese for respondent.
    (1) The corporate existence of the plaintiff cannot be assailed or litigated in this proceeding. Kayser v. Trustees of Bremen, 16 Mo. 88; State ex rel. v. Wilson, 216 Mo. 233. (2) Defendant entered into a contract or agreement August 18, 1910, and received $2,650 thereunder and agreed to enter its appearance to the proceedings brought to establish the levee district, and to enter' its appearance to the condemnation proceedings therein mentioned. It is now exclusively estopped to assert that plaintiff has no corporate existence. Broadwell v. Merrit, 87 Mo. 95; Ragan v. McEllroy, 98 Mo. 349; Reinhard v. Mining Co., 107 Mo. 616; Bradley v. Reppell, 133 Mo. 553, and authorities cited therein; Land Co. v. Railroad, 161 Mo. 595; Fishing Club v. Hackman, 172 Mo. App. 567; Elliott v. Sullivan, 152 Mo. App. 507; In re Western Bank and Trust Co., 163 Fed. 713. (3) The Hillside Securities by the agreement of August 18, 1910, and its conduct entered its general appearance to both the proceedings to create and establish the levee district as well as to the condemnation proceedings. State ex rel. v. Wilson, 216 Mo. 285; Baisley v. Baisley, 113 Mo. 544; State ex rel. v. Shelton, 142 S. W. 417; Ice & Fuel Co. v. Yan Hooser, 163 Mo. App. 591.
   RAILEY, C.

— On May 18, 1909, proceedings were commenced by petition in the circuit court of Clay County, Missouri, under the provisions of section 8361, Revised Statutes 1899, to incorporate the levee district aforesaid, as provided in article 7, chapter 122, Revised -Statutes 1899 of Missouri; and the same was incorporated under the name of “North Kansas City Levee District.” The defendant is also a corporation, duly organized under the laws of this State, and owns the land mentioned in the petition lying within the boundaries of said levee district, and sought to be charged with the payment of the taxes sued for herein.

The present action was commenced in the circuit court aforesaid on October 17, 1912, to recover $1680.84 for taxes of 1911 and interest thereon, attorneys’ fees, etc. Appellant did not sign the articles of association for the formation of said levee district, nor was it named as a party to said proceeding, although the tract of land sought to be charged with above tax was described as lying within said district.

The decree of the circuit court aforesaid incorporating plaintiff as a levee district, was rendered on November 29, 1909. Up to said last mentioned date, the defendant had not been made a party to said proceeding, nor has it since said date been made a party thereto. No summons was ever issued in said proceedings against this defendant, nor did it enter its appearance. The defendant’s name does not appear in the articles of association aforesaid, nor in the decree of said court establishing said district.

In August, 1910, plaintiff commenced negotiations with defendant to secure a right of way for a dike across defendant’s property and for a ditch extending southeasterly from the easterly end of the dike. A form of deed for this right of way, proposed by plaintiff, was submitted to defendant, and the latter refused to grant this right of way, but offered to give plaintiff a license to enter upon said property and construct the dikes and ditches in the manner described in the proposed right of way deed, for the sum of $2,650. Plaintiff agreed to proceed with said work, under said license. Accordingly a written agreement was entered into between plaintiff and defendant, wherein it was stipulated that defendant should enter a voluntary appearance in the proceedings for the formation of the levee district, which had already been had, and that the levee district should institute condemnation proceedings at once to acquire the rights of way for the dikes and ditches, and in that manner liquidate the defendant’s claim for damages on account of its property taken and accruing to the remainder of the tracts owned by defendant. The-agreement also provided that if the damages allowed by the commissioners exceeded the sum- of $2650, the sum so paid by way of license should be credited upon the commissioners ’ award, and if the latter was less than $2650, the' defendant should refund the difference. It was also expressly stipulated that if the condemnation proceeding was not begun within six months from August 18, 1910, and thereafter prosecuted to a conclusion, the defendant should have the right to return the sum which it had received as compensation for the license, and the license itself should terminate.

Following the license agreement supra, plaintiff entered upon defendant’s land, built its dike and constructed its ditches, but neither made, nor attempted to make, defendant a party to the proceeding for the formation of the levee district, so that defendant could enter its appearance, in accordance with said agreement, and have its day in court, with the privilege of showing that its land ought not, and could not, properly be included within said district; nor did plaintiff institute a condemnation proceeding to acquire the limited rights of way as it was required to. do by the terms of the foregoing agreement.

In September, 1910, the commissioners allowed defendant $2,75Q, but this amount was deemed unsatisfactory, and an appeal was taken by this defendant to the circuit court of Clay County aforesaid, and exceptions to said award duly filed, etc.

In 1912,. the appeal of the Hillside Securities Company from the award of the commissioners came on for trial in the circuit court of Clay County, and the Hillside Securities Company and its attorneys then for the first time became aware that no condemnation suit • had been brought as agreed in the contract of August 18, 1910, and that the award from which an appeal had been taken was made by the commissioners appointed in a former condemnation proceeding; that the Hillside Securities Company had never been made a party to this proceeding in any .way, and that the right of way condemned by the commissioners, as shown by their report, was a different right of way from. that described in the petition in condemnation, nnder which they were acting. When these facts developed, the levee district dismissed the condemnation snit. The defendant herein then tendered hack to plaintiff the said snm of $2650 received as aforesaid, and terminated the license in accordance with the provisions of the contract of August 18, .1910.

It is contended by defendant, that none of its lands should be included within said levee district; that the whole project is a detriment and not a benefit to its lands; that its lands have never been legally incorporated within said district; that it has never had the opportunity, which the statute provides should he given landowners, to show that its lands should not he incorporated within the district. Notwithstanding the foregoing, plaintiff has treated defendant’s lands as within said district, and has been sustained in so doing by the judgment of the trial court herein.

Defendant filed its motion for a new trial in due time, which was overruled and the cause duly appealed to this court.

I. In the recent case of Elsberry Drainage District v. Plarris, 267 Mo. 139, decided December 21, 1915, by this division, Commissioner Brown, in reviewing the law concerning drainage districts, said:
“It is evident that when their extraordinary powers are used in summary proceedings tó place a pecuniary burden upon the property of individuals, all the conditions precedent which they prescribe should and must be complied with. [Nishnabotna Drainage District v. Campbell, 154 Mo. 151, 157.] This principle is clearly recognized by the Legislature, in charging these powers and duties upon constitutional courts of general jurisdiction, which can only proceed upon inquiry, and condemn after an opportunity to be heard.”

Section 8362, Revised Statutes 1899, provides that after the filing of articles of association for the incorporation of levee districts, the same proceedings shall be taken to notify owners of real estate embraced within such district who have not signed such articles of association, and all objections of such owners, shall be made to, and heard by, the court in the manner provided by sections 8252-3, Revised Statutes 1899, for the notifying, making and hearing of the objections of owners in like cases in the formation of drainage districts, and the court shall proceed in the same manner provided in said sections.

Section 8252, Revised Statutes 1899, provides that:

“Immediately after such articles of association shall have been filed, the clerk of the circuit court of the county in which the proposed drainage district is situate, . . . shall issue a summons, as t now provided by law, returnable to the nest term of the circuit court, directed to the several owners of real estate in said proposed district who may be averred to be benefited by, but have not signed said articles of association, which shall be served as summons in civil cases; . . . setting forth in said notice that the articles of association, as aforesaid, have been filed, and the purpose thereof, and that the real estate of such owner or owners situate in said district, fully describing the same, will be affected thereby, and rendered liable to taxation for the purposes of draining said district,” etc.

Section 8253, Revised Statutes 1899, reads as follows:

“All owners of real estate in said district who may not have signed said articles of association and who may object to the organization of said drainage district, after having been duly summoned, shall, on or before the sixth day of. the term of court to which they may have been summoned to appear, file their objection or objections in writing, if any they may have, why such drainage district should not be organized and declared a public corporation of this State, and why their land will not be benefited by drainage, and should not be embraced in said drainage district, and liable to taxation for draining the same; and all such objections shall be heard by the court in a summary manner, without any unnecessary delay, and in case such objections are overruled, the circuit court shall, by its order duly entered of record, duly declare said drainage district a public corporation of this State. And in case any owner of real estate shall satisfy the court that his real estate, or a part thereof, has been wrongfully included in said district, and ' will not be benefited thereby, then the court may exclude such real estate as will not be benefited, and declare the remainder a district, as prayed.”

In the case at bar it is -conceded that defendant was not named in the articles of association filed. It did not enter its appearance, nor was it ever served with a summons or notice of any kind or description. It was not mentioned in the decree of incorporation, nor was its land described therein. It had no opportunity uhder the circumstances, aforesaid to be heard before said district was incorporated as to whether its land would be benefited by said district, or whether it should be excluded therefrom.

We are • clearly of the opinion that unless defendant, by reason of its subsequent conduct, has waived its right • to object to the taxation of its land, and to have the same excluded from said district, the present action cannot be sustained.

II. It is not necessary, in this proceeding, for 118 to question or consider the legality of plaintiff as a levee district, and in disposing of the case, we shall not do so. The authorities therefore, cited by respondent, to the effect that the validity of plaintiff as a levee district cannot be called in question in this collateral proceeding, will not be considered or discussed.

Conceding that plaintiff made a prima-facie case by offering in evidence a certified tax bill, etc.,yet the defendant had the right to show, as it did in this case, that it never had its day in court, and was never afforded an opportunity to be heard upon the question as to whether its land would be bene-' fited, or whether it should be excluded from said district. [Williams v. Grudier, 264 Mo. l. c. 225; Norton v. Reed, 253 Mo. l. c. 251; Hutchinson v. Shelley, 133 Mo. l. c. 412-413; Cloud v. Inhabitants of Pierce City, 86 Mo. l. c. 366-7.] Aside from the above authorities, it is conceded that defendant was not served with process, and failed to have its day in court before the decree of incorporation was entered, establishing plaintiff as a levee district. The prima-facie case of plaintiff, is therefore overturned, unless the subsequent acts of defendant conclude it.

III. It appears from respondent’s ■ statement of facts, that:

“On the 14th day of July, 1910, there was instituted by the North Kansas City Levee District, plaintiff herein, a certain condemnation suit 7 in the circuit court of Clay County, Missouri, wherein J. W. Perkins was along with others made parties defendant. Pie was brought into this condemnation proceeding by publication. The Hillside Securities was not made a party defendant to this suit. On the 1st day of August, 1910, the Judge appointed Commissioners. After the appointment of these commissioners the Levee District and the Hillside Securities entered into the agreement of August 18, 1910.”

The substance -of said agreement is set out in the preceding statement. At the time of it's execution, the commissioners aforesaid had already been appointed. They filed their report on September 29, 1910, allowing defendant $2,750. The latter filed exceptions to the report of said commissioners, which were continued for several terms. It appears from the record, that those appearing for defendant in respect to above matter, thought they were appearing to the new and independent condemnation proceedings which were to he instituted by plaintiff under said agreement of August .18, 1910.

On. June 11, 1912, defendant filed its special motion in the original cause, which reads as follows :

“Comes now Hillside Securities Company, and appearing for the purposes of this motion only, prays the court to enter its order dismissing this proceeding for the reason:
“1. That the statutes under which this proceeding and work was begun and prosecuted are unconstitutional and void. . . .
“i. Because this defendant was not served with process or lawfully notified of the pendency of this proceeding prior to the appointment of commissioners herein, and had no opportunity to object to or question such appointment, or to question the validity of this proceeding, and said commissioners were therefore not authorized to include the land of this defendant in their award.
“5. Because the defendant is not now, nor never has been, a party to this proceeding.
"6. Because the lands of this defendant are unlawfully included in the said district, and because said levee district has not been legally incorporated and is not, therefore, authorized to exercise the right and power of condemnation.”

This motion was overruled on the date of its filing and it appearing from the evidence that defendant’s land was not properly described in the report of said commissioners, the plaintiff thereupon dismissed said condemnation proceeding against this defendant.

The dismissal by plaintiff of the condemnation suit aforesaid left the defendant entirely out of court as to every phase of the original case. The appellant could no longer litigate the issue, as to whether its land was properly in the district. It had never been a party to the original proceeding for incorporation, and hence the dismissal of the above condemnation eliminated defendant entirely from said cause. But respondent strenuously insists that by • virtue of the contract of August 18, 1910, it made defendant a party to the original proceedings to incorporate. That part of the contract relied upon to sustain this contention reads as follows:

“The said Hillside Securities Company has also agreed to enter voluntary appearance in ths condemnation proceedings contemplated above as well as in the proceedings for the formation of the said levee district which have 'already been had.”

The remainder of the contract clearly indicates that new condemnation proceeding’s were to be commenced and defendant’s appearance entered therein; and those too, within six months, and prosecuted to a conclusion. Said contract did not contemplate that defendant was to appear in the original condemnation suit.

The plaintiff failed to comply with the terms of said agreement as heretofore shown. If it had asked leave of court to amend the petition for incorporation so as to include defendant’s land, the latter could then have entered its appearance and litigated the question as to whether its land would be benefited, or whether it should be excluded from the district. If the contract had been carried out by plaintiff, the defendant would not only have been entitled to litigate the question as to whether its land should remain in the district; but it would likewise have had an opportunity to be heard upon the appointment of commissioners to he selected under the new suits contemplated by said contract, for the purpose of condemning a right of way over defendant’s lands.

The defendant, on June 12, 1912, gave plain-” tiff notice in writing to the effect, that said contract was terminated and tendered back the $2,650 which it had received under said contract, on account of damages for right of way over its land.

It is manifest that defendant has never had its day in court, so that it could litigate with plaintiff the question as to whether its lands would be benefited by said district, or whether they should be excluded therefrom.

In view of the conclusion reached, the judgment below is reversed.

PER CURIAM.

— The foregoing opinion of. Railey, C., is adopted as the opinion of the court.

All the judges concur.


author: REVELLE, J.

text:
    MARY W. MAGINNIS, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY.
    Division Two,
    July 18, 1916.
    1. NEGLIGENCE: Liability: Last-Chance Doctrine. If the traveler, about to cross a railroad track in front of an approaching train, so suddenly changed his position of safety into one of danger that the - collision with him could not have been avoided by the exercise, of the care which the circumstances required the railroad company to use, there can be no recovery for his consequent death; on the other hand, although himself careless, if he was in a perilous position and oblivious thereto, and this was known, or should have been known to the company, and it failed to use the means reasonably at hand to avert the injury, it is liable under the last-chance doctrine.
    2. -: Liability Notwithstanding Adverse Testimony of Own Witness. The fact that if the testimony of one of plaintiff’s own witnesses is true he cannot recover does not preclude him from establishing a case by the testimony of other witnesses, even though contradictory of that of the one offered for the express purpose of establishing the main point at issue.
    .3. -: Demurrer to Evidence: Rule: Inference of Fact. A demurrer to the evidence admits whatever facts the evidence tends to prove, and the court in passing upon it must make every inference of fact in favor oi the party offering the evidence which the jury, might with any degree of propriety have made; and if, when viewed in that light it is sufficient to support á verdict, the demurrer must be overruled. To give full effect to the rule the court cannot weigh conflicting evidence, nor make inferences of fact in favor of the defendant to countervail or overthrow inferences of fact in favor of plaintiff.

      4. -: Pedestrian on Track. Where there is testimony that a pedestrian, at a recognized road crossing, was seen by the engineer from the time he was within sixty feet of the crossing; that after he came upon the west end of the crossing he proceeded east on the track a distance of sixteen feet; that he was seen by the engineer to be apparently oblivious of his danger and unconscious of the approach of the train, from behind, it was the plain duty of the, engineer to take the most appropriate action to avoid injuring the man, and that duty began as soon as it, was apparent that he was intent upon placing himself in a position of danger; nor could action be postponed until the man actually went upon the tracks, because, under the circumstances, the danger zone extended beyond those limits.
    5. -: -: Warning. The engineer of a railroad train should at least give a warning as soon as the danger to a pedestrian first becomes apparent.
    6. -: -: Confusion. Where th pedestrian, during the time he was traveling on foot a distance of 70 to 87 feet across a railroad crossing; and on the tracks, was seen by the engineer of the train, approaching from behind, the engineer is not to be excused from taking some appropriate action to avoid injuring the man, by the fact; that surprise at seeing a pedestrian in danger sometimes creates mental confusion and forestalls instant action.
    6. -: Anticipating Persons o"n Track. It is the duty of an engineer of a railroad train to anticipate the possible, and even probable, presence of persons at a public crossing, and to be in a position not to be surprised when they are seen by him to be on the track or in a position of danger, and to act quickly and intelligently.
    Appeal from St. Louis City Circuit Court.— Hon. George G. Hitchcock, Judge.
    Reversed.

      Glendy B. Arnold for appellant.
    (1) The demurrer to the evidence was properly overruled. The case was one for the jury. Maginnis v. Railroad, 165 S. W. 849. (2) The facts and the law of* this case are res judicata.

      James F. Green for respondent.
    (1) A clear ease of contributory neglig-ence on part of Maginnis was disclosed by the evidence. There was no showing of facts justifying the application of the humanitarian doctrine. Keele v. Railroad, 258 Mo. 62; Burge v. Railroad, 244 Mo. 76; Dyrcz v. Railroad, 238 Mo. 33; Bennett v. Railroad Assn., 242 Mo. 125; McGee v. Railroad, 214 Mo. 543; Laun v. Railroad, 216 Mo. 563; Stottier v. Railroad, 214 Mo. 619; Holland vr Railroad, 210 Mo. 351; King v. Railroad, 211 Mo. 13; Sanguinette v. Railroad, 196 Mo. 466; Green v. Railroad, 192-Mo. 131; Markowik v. Railroad, 196 Mo. 550; Ries v. Transit Co., 179 Mo. 1; Parris v. Railroad, 167 Mo. App. 392; Newton v. Railroad, 152 Mo. App. 167; Burnett v. Railroad, 172 Mo. App. 51; Gumm v. .Railroad, 141 Mo. App. 313; Dey v. Railroad, 140 Mo. Ápp. 461; Kelsay v. Railroad,. 129 Mo. 365; White v. Railroad, 159 Mo. App. 508; Yonbach v. Railroad, 171 Mo. 338; Guyer v. Railroad, 174 Mo. 344. (2) The court did not err in sustaining the motion for a new trial for the reasons assigned. See cases cited above.
   REVELLE, J.

— This is an action for damages on account of the death of plaintiff’s husband, who was killed by defendant’s train while attempting to cross over the tracks of its railroad at Glendale in St. Louis County.

The negligence charged is that the defendant’s servants in charge of the train failed to keep a careful and vigilant watch for the deceased as he was approaching and crossing the tracks, and in failing to slow down or slacken the speed of said train so as to permit the deceased to cross in safety, and in failing to warn the deceased of the ap.proach of the train after defendant’s servants saw, or by the exercise of ordinary care could have seen, the deceased while approaching and attempting to cross the tracks.

The answer, in addition to containing a general denial and an admission of the incorporation of defendant, pleaded contributory negligence and an unavoidable accident.

Upon the first trial a verdict for $2,000 was returned by a jury in plaintiff’s favor, and upon an appeal the judgment, in accordance therewith, was reversed, and the cause remanded by the St. Louis Court of Appeals because of erroneous instructions. [Maginnis v. Missouri Pacific Ry. Co., 182 Mo. App. 694.]

Upon the second trial a verdict in the sum of $2,000 was again returned, but this was set aside by the trial court and a 'new trial ordered on the ground that the court should have sustained á demurrer to the evidence. From this action the plaintiff appealed, and upon the second hearing a majority of the St. Louis Court of Appeals sustained the action of the trial court, while one .member dissented, and the cause • was, at the instance of the dissenting judge, certified to us for final decision.' Since the case involves but one question, namely, the sufficiency of the evidence, the facts will be stated and dealt with in the opinion.

It is difficult, indeed, to arrive at a full and complete understanding of the question presented for our decision, owing to the failure of the parties to incorporate in the record or file for our inspection the numerous photographs and diagrams admitted in evidence, and constantly referred to by the witnesses. This renders a portion of their evidence so vague and indefinite as to make it almost unintelligible.

The members of tbe Court of Appeals differed as to the facts disclosed, tbe majority bolding there •was no Substantial conflict in tbe evidence, and under it plaintiff could not recover, while one member was of tbe mind that there was a conflict, and that tbe case was one for tbe jury. When reduced to its last analysis we find tbe controversy in a narrow compass. There is no difficulty in determining tbe principles of law applicable to tbe case. If tbe deceased so suddenly transformed bis position of safety into one of danger that tbe accident could not have been avoided by defendant when exercising the degree of care called for- by tbe circumstances, tbe plaintiff cannot recover. On tbe other band, if tbe deceased, although himself careless, was in a perilous position and oblivious thereto, and this was known, or should have been known, to tbe defendant, and it failed to use tbe means reasonably at band to avert tbe injury, it is liable under tbe last-chance doctrine.

Tbe accident occurred at a recognized and authorized crossing of the railroad tracks by a public highway, a place where a clear track could not be expected or relied upon. This phase, however, so important and decisive in many cases, is unimportant here, because tbe engineer' admits that be actually saw and carefully observed tbe actions of tbe deceased while be was approaching tbe point of tbe accident and at tbe times, upon plaintiff’s theory, when warnings should have been but were not given.

As against tbe demurrer tbe following facts are established without question. Respondent was maintaining double railroad tracks through Glenwood, tbe locus in quo, running,east and west and intersecting at about right angles a public dirt road running north and south, .and known as Berry Road. Eastbound trains are operated on tbe south track, and west-hound trains on the north track, these being ten or twelve feet apart. The view from the track for at least a half mile west of the crossing is unobstructed, and the train at the time in point was coming from the west. On the south side of defendant’s tracks and right of way, and abutting the west side of Berry Road, is located the store of one John P. Evers, facing the east. The northeast corner thereof is about fifteen feet from the south line of defendant’s right of way, and about 56 and one half feet south of the south rail of the south or east-bound track. In front of this store and along the west side of Berry Road is a plank sidewalk extending to within 22 feet of the southwest point of the railroad crossing, and to within 17 feet of the south rail on a direct line, the southwest point of said crossing being east and north of this terminus of the foot walk. Between the end of this walk and the railroad crossing the ground surface was of cinders and dirt. The crossing consisted of the tracks and planks laid both inside and outside of the rails, these planks being 16 feet in length and lying parallel with the rails. . On the north side of the tracks the board sidewalk was on the east side of Berry Road, so that the ordinary course of a pedestrian going from the south to the north would be north along the plank walk to the end thereof, thence northeast in a diagonal direction across the tracks to the east side of Berry Road, where he would reach a plank walk extending north, there being no sidewalk on the east side of Berry Road south of the track and no sidewalk on the west side of Berry Road north of the track. Berry Road was 40 feet in width, but-only about ten feet thereof was generally used for travel. At a point 17 feet south of the east-bound track, and about 30 feet east of the traveled part of Berry Road, is located a small station-house for the use of - defendant’s patrons, the ■ northwest corner thereof being also about 90 feet from the northeast corner of Evers’ store. The plank sidewalk at a point 20 or 30 feet south of the track makes a bend or turn towards the northeast, and in the direction of the southwest corner of the railroad crossing.

The evidence is undisputed that immediately preceding the accident the deceased walked north on the plank sidewalk to some point beyond the northeast corner of Evers’ store and south of the east-bound track. The point to which he thus walked and the course' h$ then took are the questions on which it is said by the plaintiff and one member of the Court of Appeals there is a conflict of evidence, it being contended that a part of the evidence shows that he proceeded on the plank walk to or near the end thereof, thence to the southwest corner of the crossing, thence down the tracks for a distance of 16 feet to the end of the planks on the crossing, and was there killed. The defendant contends, and in this a majority of the Court of Appeals concurs, that all the evidence shows that he did not so proceed, but that when near the northeast corner of Evers’ store he crossed the Berry Road, going east in the direction of the station-house, and so continued until he reached a point on the east line of Berry Road, when he suddenly, and without previous manifestation of such an intention, turned directly north onto the track, where he was killed. There, seems but little difference of opinion as to the point where he was struck by the train, this being at the northeast end of the railroad crossing.

As we read and understand the testimony of Evers, it is that immediately after the train struck the deceased, and after it had passed over the crossing, he saw the remains lying on the north or westbound track. It had rained during the preceding night and there was mud on the road, cinders and crossing. After the train finally left he and others located and traced the foot-prints of deceased, identifying them by means of a break or hole in the sole of his shoe which left definite impressions on the muddy cinders and planks. The first of these foot-prints were found at or near the southwest corner of the railroad crossing, the others (there being six in all) were on and along the crossing going east and parallel with the tracks to the east end of the crossing boards at the northeast corner of the crossing where he was struck.

The engineer testified that he first observed the deceased as he emerged from in front of the Evers’ store, when about three feet from the east end thereof; that he was in a run and going north on the plank walk, but after advancing three or four steps thereon and before reaching the end of the walk, he diverted his course, turning eastward and diagonally in the direction of the station-house. He proceeded in that general course until' he crossed the Berry Road and reached a point just opposite the plank walk located on the north side of the track, this placing him on the east side of Berry Road, when he suddenly turned north and went onto the track where he was struck. He further says that from the conduct and actions of the deceased it was his impression that he was endeavoring to reach the station with the intention of boarding a train; that he gave the crossing signal when within 80 rods of the crossing, and when within from 40 to 70 feet of the crossing he gave the alarm signal or warning. There is evidence from other witnesses that he did not give a crossing signal, and that the only warning or signal given at any time was the aforesaid alarm signal.

There can be bnt little donbt that if the engineer’s evidence is to be accepted as the only probative evidence, the plaintiff cannot recover, because if the deceased took the course described by the engineer, and the engineer gave the warnings and signals to which he testified, he could have done nothing more that 'would have prevented the accident, and the last-chance doctrine would not apply. Under the facts detailed by him he was warranted in acting on the .presumption that the deceased heard the warnings and knew of the approach of the train, and that he would not suddenly, and without any manifestation of such an intention, change his then position of safety into one of danger. [King v. Railroad, 211 Mo. 1; McGee v. Railroad, 214 Mo. 530; Burge v. Railroad, 244 Mo. 76; Guyer v. Railroad, 174 Mo. 344; Dyrcz v. Railroad, 238 Mo. 33.]

While it is true the plaintiff introduced the engineer as his own witness, this does not preclude him from establishing a case by other testimony, even though it is contradictory of that which he first offered. While he would not be permitted to impeach his witness, he may show by other witnesses what he contends to be the true facts. [Phelan v. Paving Co., 227 Mo. 666; Knorpp v. Wagner, 195 Mo. 637; State v. Shapiro, 216 Mo. 359.]

The trial court sustained the motion for new trial upon the ■ ground that it had erred in not sustaining a demurrer to the plaintiff’s evidence, and in reviewing such action it is well settled that we must make every inference of fact in favor of the plaintiff. A demurrer to the evidence, so run the rulings, admits .the facts the evidence tends to prove, and in' passing upon it the court is required to make every inference’ of fact in favor of the party offering the evidence which the jury might with any degree of propriety have inferred in his favor, and if, when viewed in this light, it is sufficient to support a verdict the demurrer should be overruled. [Troll v. Drayage Co., 254 Mo. 332, l. c. 337.] To give full effect to this rule we cannot weigh conflicting evidence, nor can we make inferences of fact in favor of the defendant to countervail or overthrow inferences of fact in favor of the plaintiff. After careful consideration of the evidence, it is our opinion that the facts testified to by other witnesses offered by plaintiff are clearly contradictory of the statements of the engineer, and if such are believed by the fact triers, as they evidently were in this and the preceding trial, the plaintiff is entitled' to recover. If the deceased’s foot-prints were as described by other witnesses it was impossible for him to have pursued the course or gone upon the track in the manner and at the place testified to by the engineer. In the first place, the point at which the engineer says the deceased suddenly turned, and from which he went onto the track is, according to the testimony of one of defendant’s employees, about twelve feet east of the east end of the . railroad crossing and where the deceased was killed. According to his testimony the deceased was at no time on the west side or end of the crossing, whereas his foot-prints disclose that it was at this place that he'entered upon the track. They further show that he proceeded down the track to the east end of the crossing, a distance of. 16 feet, all of which was impossible if the engineer is correct in his, statements. Another thing which the jury had a right to consider in determining whether the engineer was . telling the truth, is that, according to his testimony, he saw the deceased when he'was about three or four feet from the northeast corner of Evers’ store.

A. S. Butterworth, who was an employee of the defendant and who made measurements in this case at its instance, testified that, owing to the manner in which the Evers’ store was located, the rear thereof being within a few inches of the right-of-way, while the front was about 15 feet away, and owing to a certain bill-board located to the rear of this' store, a person would have to be approximately at the north end of the board walk before he could have a clear view 500 feet west. If this testimony is ■ true, then the deceased proceeded north on the sidewalk approximately to the end thereof, otherwise he could not have been seen by the engineer when the engineer says, and this would tend to corroborate the theory of the footprints; or if he left the sidewalk at the place where the engineer says, then, in taking the course by him described the measurements show that the deceased, a man of 69 years of age, traveled .on foot, and over muddy ground, a distance of 87 feet, while the train, running at a speed of 45 miles per hour, covered 500 feet. While this is not utterly impossible, it is capable of an inference decidedly favorable to plaintiff’s cause.

Unless we reject as unworthy of belief or as having no probative force the evidence of witness Evers relative to the foot-prints and the course they indicate the deceased pursued, we find there is substantial evidence tending to show that the deceased walked north on the plank walk to some point, and from there to a point from which he passed upon the defendant’s tracks at the west end of the crossing, and then proceeded east on the track to the northeast end of said crossing, a distance on the track of 16 feet. The testimony of the engineer shows that he actually observed the deceased from the time he was within at least 60 feet of the crossing, if he traveled as the footprints indicate, and until he came upon or near the tracks. His evidence also shows that the deceased was apparently oblivious to his danger and unconscious of the approach of the train. Under such circumstances his duty was plain and began when it became apparent to a prudent operator that the deceased was intent on so acting as to- place himself in a position of danger. He could not defer action until the man actually went upon the tracks, because, under the circumstances detailed the danger zone extended beyond these limits. He should have at least given a warning when the .impending danger first became apparent, thereby bringing the unwary traveler to a realization of his danger and duty to act, and. this, according to some of the evidence, the engineer did not do. [Eppstein v. Railroad, 197 Mo. 720; Degonia v. Railroad, 224 Mo. 564.]

The circumstances and physical facts show, assuming, as we think the evidence justifies, that the deceased traveled the course indicated by the footprints, the engineer saw, and under the law governing this case was bound to see, because charged with looking, and looking was seeing, the deceased in a perilous position in sufficient time to have given proper warnings, thereby preventing the accident. Surprise on the part of the engineer at the appearance of the deceased and that consequent mental confusion which sometimes prevents instant action in the most intelligent way (Underwood v. Railroad, 182 Mo. App. 252; McGee v. Railroad, 214 Mo. 530) cannot be pleaded here, because during the time the deceased was traveling on foot a distance of from 70 to 87 feet, he was constantly under the eye of the engineer. Instead of expecting a clear track at this public crossing, the engineer had to anticipate the possible, and even probable, ■presence of persons, and he was required to be in a position to not be surprised and to act quickly and intelligently.

The evidence also shows that the air or emergency brakes were not applied until the train was within 40 feet of the deceased, and that the train was brought to a stop within 600 feet after the application of such brakes. It is also in evidence that the speed of the train could have been reduced to’ 20 miles an hour within a distance of from three to four hundred feet, which is less than the distance at which the deceased could be seen by the engineer while approaching the track.

Finding from the present record the facts as above stated, the Court of Appeals in its opinion on the first appeal of this case, where a judgment for the plaintiff was reversed because of erroneous instructions, found that the case was one for the jury. The law applicable to these facts and inferences is well and fully stated in that opinion» (Maginnis v. Missouri Pacific Railway Co., 182 Mo. App. 694), and a repetition would be but fruitless toil for both ourselves and the profession. Giving ""to the plaintiff the favorable inferences which the facts reasonably warrant, and this we are required to do, it is our opinion that the court erred in holding the evidence insufficient to sustain the verdict.

It is accordingly ordered that the action of the trial court in setting aside the verdict and granting a new trial because of the insufficiency of the evidence, be reversed and set aside, and that a judgment in accordance with the verdict be rendered.

All concur.