author: GANTT, J.

text:
    EARL B. PENNEY et al., by HENRY M. RAMEY, JR., NEXT FRIEND, v. ST. JOSEPH STOCK YARDS COMPANY, Appellant.
    Division Two,
    May 19, 1908.
    1. NEGLIGENCE: Fellow-Servant Act: Terminal Railroad: Organized as Business Company. The Fellow-Servant Statute making liable “every railroad corporation owning or operating a railroad in this State” for all damages sustained by any servant thereof by reason of the negligence of a fellow-servant, is broad enough to include a defendant organized as a “manufacturing and business company” which was by its charter given power “to operate terminal lines of railroad” and which in fact is engaged in operating a terminal line of railway.
    2. -: Damage: Suit by Children: Living Wife: Evidence: Petition. The minor children of a deceased father may prosecute their action for his negligent killing, notwithstanding some woman claiming to be his widow has previously brought suit for statutory damages for his wrongful death; and her petition alone in that suit, to which they were not made parties, is not competent evidence to show that she is his widow, but a mere self-serving statement by her made after his death; and certainly it does not bear on the issues of their case, unless defendant assumes to prove that she is his widow.
    3. -: Switchman: In line of Duty: Moving Cars. Where the evidence tends to show that the switchman was in a dangerous place, leaning against the dock where cars loaded with hogs were being unloaded into the stock yards; that it was his duty to be there to ascertain when the unloading was completed, and that it was the rule and custom for the engineer not to move the train until some one of the switching' crew gave him the signal that the cars were unloaded, and to move, and he did move the train without notice or warning, it cannot be said that the switchman was not in the discharge of his duties or that he unnecessarily placed himself in a place of danger.
    4. -: -: Obvious Danger: Contributory Negligence. Where the whole testimony tends to show that it was the duty of the engineer not to move the cars until he had received a signal from some one of the switchmen that the cars at the dock of the stockyards were unloaded, and that no signal was given until they were unloaded, and that switchmen customarily placed themselves in places of danger that they might ascertain when the cars were unloaded and give the engineer the signals, and they were not called upon to anticipate that the cars would be moved either before such signals were given or before the engineer had given warning or notice, the switchman, who, in the line of his duties, placed himself against the dock where a moving car would strike him, was not, because of the obvious danger, guilty of contributory negligence.
    o. -: Contributory: Instruction. The court refused to instruct the jury that “if you find from the evidence that” the deceased switchman “was not required at the time in the performance of his duties to go in between the cut of the cars and place himself in the position in which he was at the time he was injured by the backing of the cars,” then their verdict should be for defendant. Held, that the point it presents was fully covered by another instruction given, which told the jury that if the switchman negligently placed himself in a position of danger, plaintiffs could, not recover, and by another which told them that if he failed to exercise the vigilance and caution which would have been exercised by a careful and prudent switchman under similar circumstances in the discharge of his duties, and the failure to exercise such caution contributed to his death, plaintiffs could not recover. Moreover, the instruction was faulty in leaving out the usual and proper method for the deceased to perform his duty, and in not submitting to the jury whether his act in going between the uncoupled cars as he did, and for the purpose he did, was negligence.
    Appeal from Buchanan Circuit Court.— Hon. Henry M. Barney, Judge.
    Affirmed.

      Thomas F. Bycm for appellant.
    (1) Penney was negligent in voluntarily taking a position of peril and remaining there. Such negligence directly contributed to his injury and bars a recovery. He knew the cars would likely be moved and he was not in a position to see when the signal to move was given, nor was he where his danger was known to the other men of the crew. Defendant’s demurrer to the evidence should have been given. Doerr v. St. Louis Brewing Co., 176 MO'. 547; Smith v. Forrester-Naee Box Co., 193 Mo. 715; Richardson v. Mesker, 171 Mo. 666; Zumault v. Railroad, 175 Mo. 288; Hudson v. Railroad, 123 Mo. 445; Gurley v. Railroad, 104 Mo. 211; McCarty v. Rood Hotel Co., 144 Mo. 397; Sidlinger v. City of Kansas, 126 Mo. 315; McKee v. Railroad, 96 Mo. App. 671; Towner v. Railroad, 52 Mo. App. 648; Loring v. Railroad, 128 Mo; 349 ; McIntosh v. Railroad, 58 Mo. App. 281; McKenna v. Railroad, 54 Mo. App. 161; Kelly v. Railroad, 11 Mo. App. 281; Caldwell v. Railroad, 181 Mo. 445. The fact that other men went in the opening between the cars to look, if such was the case, did not relieve the act of being negligent. If this was a negligent act, and it was, the custom of others going in such a place did not change its character and relieve Penney. Smith v. Forrester-Naee Box Co., 193 Mo. 715; Doerr v. St. L. Brewing Co., 176 Mo. 547; Warden v. Railroad, 94 Ala. 285'; George v. Railroad, 109 Ala. 256; Andrews v. Railroad, 99 Ala. 438; Hickey v. Railroad, 14 Allen (Mass.) 429; Railroad v. Jones, 95 U. S. 439; Railroad v. Robbins, 43 Kan. 145; Bryant v. Railroad, 56 Vt. 710. If it was Penney’s duty to look along the dock and see if it was clear, he should have been careful in the performance of that duty. There were several ways open to him to obtain a view of the dock. He could have climbed on top of the cars. He could have crossed between the cars and stepped up on the dock by putting his foot on the step of the car. It was not necessary for him to deliberately stand where he would be crushed by the cars. Where more than one way is open, and the servant chooses the dangerous way, the master is not liable. This Penney did, and plaintiffs cannot recover. Smith v. Box Co., 193 Mo. 715; Moore v. Railroad, 146 Mo. 572; Plulett v. Railroad, 67 Mo. 239. (2) In order to entitle plaintiff's to recover it was necessary for them to plead and prove that their father, at the time he received the injuries which resulted in his death, was in the line of his duty. There was an entire failure of proof on this point. Plaintiffs’ testimony all showed that at the time the deceased Penney was injured he was not in the line of his duty. It was urged at the trial court, and will be urged here, that P'enney’s duty required him to go through the cut in the cars to ascertain whether the cars had been unloaded and then to give the signal to the engineer to connect up- the cars. This assumption is contradicted by plaintiffs’ own testimony. The witnesses Sparks and Blakely, who were plaintiff’s witnesses, both testified that they were at the north end of the cars to ascertain when the cars were unloaded, and then to signal the engineer. That was their duty. Penney’s duty was to follow the engine, that is, to throw the switches, etc. No witness has testified that at this time any duty called him between the cars. Penney, therefore, at the time he was injured had placed himself in a position of danger, where his duty did not call him, and, therefore, cannot recover. Stagg v. Tea Co., 169 Mo. 489; Schaub v. Railroad, 106 Mo. 74; Barry v. Railroad, 9.8 Mo. 63; Duval v. Packing Co., 119 Mo. App. 150: (3) The court erred in refusing to allow defendant to introduce in evidence the petition and record in the case of Sadie Penney v. St. Joseph- Stock Yards Company. The Sadie Penney case was instituted first. The evidence showed that Sadie Penney was living with the deceased as his wife and was reputed to' be his wife at the time of his death. The law presumes that they were married and that she was his widow. Cargile v. Wood, 63 Mo. 501; State v. Cooper, 103 Mo. 266; Dyer v. Brannock, 66 Mo. 391. The statement of Sadie Penney that she was his wife prima-facie established the presumption. White v. Maxey, 64 Mo. 552; Ashford v. Ins. Co., 80 Mo'. App. 638. The court should not have tried this case until the case of Sadie Penney was determined. If she was the wife, she had the right to sue in the first six months; after that the children could sue, if she did not. She did sue and the presumption is that she was the wife. She appropriated the cause of action and the children could not sue. Mc-Quade v. Railroad, 200 Mo. 150; Packard v. Railroad, 181 Mo. 421.

      G. F. Strop, J. W. Mytton, E. M. Barney, Jr., and Eugene Silvermcm for respondents.
    (1) The deceased at the time of his death was in the performance of his duties. The act of the engineer in starting the engine before the train was unloaded and without any signal from any switchman so to do, and without a warning by him of his intention so to do, and especially when no' reason for such movement of the train is assigned, and there was no necessity therefor, was the cause of the death of plaintiffs ’ father, and entitled plaintiffs to recover. Black v. Railroad, 172 Mo. 177; Cambrón v. Railroad, 165 Mo. 543; Beams v. Railroad, 58 Iowa 150; Wilkens v. Railroad, 101 Mo. 93; Butler v. Railroad, 87 Iowa 206; Railroad v. Baker, 106 Ala. 624; Railroad v. Lanier, 87 Gra. 587; Railroad v. Barnett, 89 Ga. 399; Railroad v. Fulghum, 94 G-a. 571; Lowe v. Railroad, 89- Iowa 420; Strong v. Railroad, 94 Iowa 380; Railroad v. Murray, 55 Kan. 336; Railroad v. Wallingford, 22 S. W. 439; Railroad v. Hanning, 31 N. E. 187. (2) It was shown that Penney was divorced from his wife and there was no presumption that he thereafter married. Johnston v. Johnston, 170 Mo. 55; Karstens v. Karstens, 20' Mise. (N. Y.) 247; Erskine v. Davis, 25 111. 251; Wiseman v. Wiseman, 891 Ind. 479.
   GANTT, J.

— This is an action by tbe plaintiffs, who are minors, by tbeir next friend, against tbe Stock Yards Company for the alleged negligent killing of their father, Rnfns Penney, on December 4th, 1904, at St. Joseph, Missouri. The Stock Yards Company is a corporation organized under article 8, chapter 42, Revised Statutes 1889, now chapter 12, article 9, Revised Statutes 1899, entitled Manufacturing and Business Companies, in 1896. Among other purposes of this corporation as set out in its letters was ‘ ‘ The operation of terminal lines of railway” in connection with its stock yards and packing houses in the city of St. Joseph.

The evidence tended to prove that at the time of the injury complained of, the defendant owned a number of miles of railroad tracks at the city of St. Joseph and large terminals therein and large pens and yards for the receiving and handling of live stock, and maintained a roundhouse, and at the time of the killing of plaintiffs’ father continuously operated six locomotive engines and employed the necessary crews to operate the same, and did the necessary switching for the six principal railroads converging at St. Joseph in connection with the said stock yards. Each engine had a switching crew of three men besides the engineer and fireman. The hog pens were about six hundred feet long south-and-north. Along side of the hog pens was a large platform about twelve feet wide and running the full length of the said hog pen. This platform or “dock,” as it was called, was about on a level with the floor of a stock car, and was used for unloading cars. Gates that were fastened to the posts of the hog pens, swung round from the dock and were adjusted to the car doors, and in this way a narrow enclosure or passage way was formed, so that the hogs could be driven from the car across the dock into the hog pens. Along side of and immediately east of this dock was a railroad track of the defendant, upon which the cars were set to be unloaded. The space between the dock and the cars when standing on this track was about six to ten inches. The petition alleged the appointment of the next friend to institute and prosecute this suit for the plaintiff minors; also the incorporation of the defendant, and that at the time of his death Rufus P. P'enney was unmarried and left no widow surviving him; that the defendant in its railroad business used and operated locomotive engines and trains and that each of said engines and trains maintained a train crew, each of said crewsi being composed of an engineer, a fireman and two switchmen; that defendant had large docks in and about its yards, constructed and used for the purpose of unloading live stock from railroad cars into its said stock yards, and alongside of said docks are railroad tracks used for the purpose of transporting cars to, alongside of and flush with said docks. That on and prior to the 6th of December, 1904, the father of the plaintiffs, said Rufus P. Penney, was in the employ of the defendant in the capacity of a switchman in one of its said train crews. The petition further states that at all times there were large numbers of men engaged about the docks of the said company in unloading live stock from the ears on the tracks alongside of said docks, and it was the duty of the train crew, of which their father was switchman, to run or cause to he. run cars loaded with live stock upon the tracks alongside of said docks to be unloaded and to remove from said tracks cars that had been unloaded by the employees engaged in unloading the same; that at all times there were large numbers of cars along the side of said docks, and in the performance of his duties it was the duty of their father to ascertain before moving a car on the tracks by said docks whether or not men were engaged at work on or about the cars or docks, who were liable to be injured by the moving of said cars, and if it was desired to couple cars together to ascertain before moving said cars whether or not any persons were in a position of danger, and whether or not in case said cars were moved in coupling the same, any person was liable to be injured; that it was the duty of the engineer to permit the cars and his engine to which the same were attached to remain stationary until he received a signal to move said cars, from the foreman of the switching crew or some member of the said crew in which plaintiffs ’ father was working, and it was the duty of said foreman not to give said signal until said foreman was notified so to do by plaintiffs’ father. The petition then states that on the 6th of December, 1904, while the father of plaintiffs was engaged in performing his duties- as switchman as aforesaid for defendant, one of defendant’s steam engines was standing attached to- a number of cars alongside of one of said docks, and at said time and while said switching crew were about to- and were preparing to-couple or attach said cars to other cars- alongside of said dock, which said cars were about six or seven feet from the cars to- which said steam engine was attached, their said father, in the performance of his duties and while in the exercise of due care, walked alongside of said cars to which said steam engine was attached and on the side thereof opposite to the said dock and to the end of the cars to which said steam engine was attached and walked across the railroad tracks between said cars to the said docks where he could obtain a full view of said docks for the purpose of ascertaining and learning, as it was his duty to do, whether or not any person in or about said train or cars or docks- was in a position of danger, or where he would likely or probably be injured by the movement of said engine and cars attached thereto, for the purpose of coupling said train to said other cars, and while their said father was so looking in accordance with his duty so to do, the engineer in charge of the engine attached to said cars suddenly and without warning to their said father and without any signal to do so from their father or the foreman of said switching crew, carelessly and negligently moved or caused to he moved the cars and engine rapidily toward, upon, against and over their father; that at the said time their father was close to or leaning against said docks, and while in said position and place, said engine and cars were negligently and carelessly by the engineer and employees of the defendant in charge thereof, moved upon, against and over him without any warning or signal from him or any other person authorized to give said signal, and thereby their said father was caught between one of said cars and said dock, which was only about seven inches from the side of the car, and was so bruised, maimed and crushed that he died immediately from the effects thereof. Plaintiffs state further that the engineer and other employees of defendant in charge of said engine before moving the same, by the exercise of ordinary care on their part, could easily have seen and known the position of peril and danger their father was in and by the exercise of ordinary care could have avoided injuring him, but said engineer and the other employees in charge of said engine, carelessly and negligently moved said engine and cars upon and over him. There was a prayer for judgement for five' thousand dollars for damages resulting from the death of their father.

The defendant in its answer admits its incorporation but denies that it was engaged in operating or carrying on a general railroad or terminal business. It charges the fact to be that it was incorporated’ as a business corporation under the laws of this State and was engaged in the general business of conducting a stock-yards company, and as an incident thereto it owned and maintained certain terminal railroad tracks, which were laid upon its own premises and operates thereon switch engines for switching and moving such cars as are brought to its yards in the operation of its business. It denied each and every allegation except such, as were specifically admitted. It then pleaded an assumption of all ordinary risks by the plaintiffs ’ father, which were connected with and incident to his employment as switchman, and that his injury resulted from one of the said risks. Defendant also pleaded contributory negligence on the part of plaintiffs ’ father as a direct proximate cause of his injury in placing himself in a position of danger between said cars, knowing at the time that they were liable to be moved.

For another and separate defense the answer alleged that one Sadie Penney on the — day of — 1905, instituted a suit against defendant in the circuit court of Buchanan county, in which she alleged that she was the widow of Rufus Penney and- for which she prayed five thousand dollars for his death on account of the negligence of the defendant in killing him and that said suit had been transferred by a change of venue to the circuit court of Clinton county and is still pending and undisposed of. That the said Sadie Penney was seeldng to recover of defendant, as widow, damages for the same injury that plaintiffs are attempting to recover upon as his children, and that defendant in its answer in said suit has put in issue the facts alleged in said petition and that plaintiffs are not entitled to maintain this suit until the aforesaid suit of the said Sadie- Penney against defendant has been adjudicated. The answer then proceeds to charge that plaintiffs and the said Sadie have- entered into a contract wherein they have agreed that they would mutually assist each other in the prosecution of said suit of said Sadie against this defendant and in the prosecution of this suit, and divide the proceeds, if any, realized by judgment or otherwise, and that plaintiffs by virtue of said contract are now estopped from denying that said Sadie was the widow of said Rufus Penney their father.

Defendant for further answer says that the plaintiffs allege in their amended petition that the injury which resulted in the death of their father was caused by the negligence of his fellow-servants and they seek to recover in this case on such allegations of negligence of the fellow-servants of plaintiffs’ father under and by virtue of the provisions of section 2873, Revised Statutes 1899’; that said section has no application and does not apply to the defendant corporation. That if said section 2873 should be construed to apply to this defendant, then it is in violation of section 53 of article 4 of the Constitution of Missouri in granting an exclusive right, privilege and immunity to this class of business, and is unconstitutional in that it changes the rules of evidence. It is also alleged that said section violates section 30 of article 2 of the Constitution, in that it is a taking of defendant’s property without due process of law, and violates section one of article 14 of the Constitution of the United States, in that it denies defendant equal protection of the law.

To this answer there was a reply denying all the new matter.

The cause was tried to a jury and resulted in a verdict for the plaintiffs for five thousand dollars. There is little controversy as to the main facts.

On the 6th of December, 1904, Rufus Penney, the father of the plaintiffs, was employed by the defendant as a switchman and as one of a crew operating one of the engines of the defendant. This crew consisted of said Penney, Sparks and Blakely, Sparks being foreman. The engine was in charge of a Mr. Wright, the engineer, and Lyons, the fireman. There were twenty cars in the- train with which this crew were working, at least eight of which were loaded with hogs. Alongside of the track upon which this train was pulled, was an unloading dock and the hogs were unloaded by setting the doors of the cars in such a manner that the car doors opened immediately opposite chutes in the hog pens, and in order that the doors might be just opposite the chutes as aforesaid, it was frequently necessary to cut the trains, and on this occasion at this particular place the train was cut into two parts, leaving twelve cars in one string attached to the engine and the eight cars loaded with hogs in the other string. Between these two sections of this train thus cut in two there was a space of about six feet. The engine was at the south end of the train, and the unloading was being done from the west side of the eight cars north of the opening between the two sections. The dock hands unloaded the cars and the switching crew had charge of the moving of the cars and they had nothing to do with the unloading. The evidence tends to show that after this train had thus been cut in two, it was the duty of the engineer not to move or start the train in motion until and unless he received a signal so to do from either the foreman Sparks or Blakely or Penney. And that it was the duty of the engineer to obey the signals of the foreman, but that it was his duty also to obey the signals of either of the said switchmen in the absence of the foreman. The docks upon which the hogs were unloaded were about four feet high and stood from six to ten inches from the cars, leaving barely room enough to permit the cars to pass when in motion. This space between the cars and the docks was so left because the cars were of uneven width and for the further reason that when in motion the cars would, rock from one side to the other, and it was necessary to leave some space so that the ears would not come in contact with the docks. The evidence also showed there were ten or twelve men, upon the dock and in the cars, engaged in unloading this train-load of hogs, and that the movement of this train before it was unloaded or before these employees had an opportunity to get out of the' way, would be attended with great danger to them. It was the duty of the switching crew and each of them, while the hogs were being unloaded, to take positions about the dock and the train, so that they might inform themselves where the men were at work in unloading the hogs and when the unloading has been completed, and it was their duty not to permit the train to move until- it had been entirely unloaded, and the switching crew took various positions, so as to enable them to inform themselves as to the situation. Testimony discloses that after this train had been cut in two, Penney, the deceased, went into the cut between the cars and stood leaning over the dock so that he would be in a position to see what the men engaged in unloading were doing, and so as to tell when the train was unloaded. The evidence also tended to show that cuts similar to the one made in this train were frequently made in trains while they were being unloaded, and it was customary and usual for the switchmen to-go between the train of cars and into the open space as the deceased did at the time he was injured. On the part of the plaintiffs the evidence tended to prove that while Penney, the deceased, was in the position aforesaid leaning against the dock, without any warning to him or to any one and without any signal from him or from either of the other switchmen, and before the train was unloaded, the engineer in charge of the engine in question suddenly caused the engine to be put in motion and the two sections to be thrown together, thereby catching the deceased between the cars, crushing and bruising him to such an extent that he died almost immediately. Sparks and Blakely both testified positively that neither of them gave any signal to the engineer and they heard no signal from the engineer of his intention to start. A number of the dock hands engaged in unloading the cars also testified that the engineer gave no signal before starting the engine. On the other hand, the engineer and his fireman testified that the engineer caused two blasts of the whistle to be blown before he pnt his section in motion. The engineer testified that Penney, the deceased, gave him a signal to move. No other person saw Penney give the signal, and the other witnesses testified that at the time he was hart he was leaning across the dock with his pipe in his month and entirely ignorant of any intention on the part of the engineer to move the train. Evidence tended to show that at the time Penney was killed he was in a position where it was not possible to give a signal to the engineer, because he could not be seen by the engineer. Other facts will be noted in the course of the opinion. Various, errors are assigned for the reversal of the judgment and they will be noted.

I. The plaintiffs invoke the benefit of the Fellow-servant Act of 1897, now incorporated in Revised Statutes 1899, as section 2873, which provides: “That every railroad corporation owning or operating a railroad in this State shall be liable for all damage sustained by any agent or servant thereof while engaged in the work of operating such railroad by reason of the negligence of any other agent or servant thereof: Provided, that it may be shown in defense that the person injured was guilty of negligence contributing as a proximate cause to produce the injury.” That the engineer and the father of the plaintiffs, the switchman, were fellow-servants is not questioned. But the defendant insists that as it was incorporated under article 8, chapter 42, Revised Statutes 1889', which provides for the incorporation of private- corporations under the head of “manufacturing and business companies,” it was not a- railroad corporation and does not fall within the purview of the Fellow-servant Act of 1897. In Powell v. Sherwood, 162 Mo. 614, this court In Banc held that section 2873, Revised Statutes 18991, must be construed and read in connection with section 1163, Revised Statutes 1899, which provides that: “The term ‘Railroad corporation’ contained in this chapter shall be deemed and taken to mean all corporations, companies or individuals now owning or operating, or which may hereafter own or operate, any railroad in this State.” The charter of the defendant in express terms authorizes it “to operate terminal lines of railway” in connection with its stock yards. And the evidence demonstrated that the defendant owned a number of tracks in and about its yards and maintained at least six engines, which were operated by engineers and fire-. men and regular train crews of switchmen, and was constantly engaged in receiving trains loaded with stock from the various roads centering at St. Joseph, and that it did the necessary switching in handling these trains and unloading the same and returning the cars to the various companies. In a word, it performed all the operations of a regular terminal railroad. In view of the express provisions of section 1163 and the decision of this court in Powell v. Sherwood, 162 Mo. 605, we are of the opinion that the statute is broad enough to include the defendant and covers all railroads, whether owned by a railroad corporation technically incorporated as such, or by any other corporation, company or individual owning and operating a railroad in this State, and therefore the contention of the defendant on this point can not be sustained.

II. Error is assigned on the refusal of the circuit court to permit the defendant to introduce in evidence the petition and the order awarding a change of venue from Buchanan county to Clinton county in the case entitled “Sadie Penney v. The Stock Yards Company.” To properly understand this point reference must be had to the pleadings in the case and what occurred at the time this offer of this evidence was made in the circuit court. In the answer by defendant, it is nowhere alleged that the said Sadie Penney was in fact the widow of Rufus Penney and therefore entitled alone to maintain this action. When the offer was made, connsel for the defendant said: “I presume we may consider in evidence the petition in the case of Sadie Penney against defendant;” whereupon, counsel for the plaintiffs replied, “I am willing to consider the entire record in that case. ’ ’ It will be noted that if the entire record in the case of Sadie Penney against the defendant had been put in, it would have included the answer of the defendant, in which, as alleged by the defendant in this case, he had put in issue the fact that said Sadie Penney was the widow of Rufus Penney, deceased. Counsel for the defendant, however, insisted upon his right to offer simply the petition of Sadie Penney and so much of the record as showed that the case had been transferred on change of venue to Clinton county, to which the plaintiffs objected as wholly immaterial. The court having intimated that the offer was not competent, counsel for the plaintiffs thereupon stated: “I want the record right. If Mr. Ryan [counsel for defendant] proposes to follow this proof and show that this woman is Penney’s wife, it is possible that the testimony might be competent, but unless he does so it is not competent.” The Court: “It will be excluded unless Mr. Ryan proposes to prove that this woman is his wife.” Thus, it will be seen that the attorneys for the plaintiffs withdrew all objections to this kind of testimony if the claim was made that Sadie Penney was the widow of Rufus Penney, and the circuit court offered to permit the fullest investigation of that question. We think under the facts thus shown, the trial court correctly excluded the evidence. Certainly it is not the law that the minor children of a deceased father can not prosecute their action for his negligent killing because some woman may bring her suit ■ claiming to be the widow of the deceased. The minor plaintiffs in this case were no parties to the suit of Sadie Penney against the defendant, and would not be bound by any judgment therein, nor would they be estopped by her allegation in her petition, in a separate snit, that she was such widow. That the defendant might in a-proper proceeding, if it had so desired, have required the issue as to whether said Sadie Penney was the widow of said Rufus Penney determined, so that it would not he liable for the penalty to both the widow and the children, may be true, but no such step was taken in this case, and when the defendant refused to even allege that the said Sadie.Penney was the widow of Rufus Penney, and declined the court’s offer to permit it to so show, we think the circuit court properly refused to permit her petition in evidence as it was a mere self-serving statement of hers made after the death of Rufus P'enney, which was in no sense binding upon the plaintiffs in this case. It is true the defendant contends that there was evidence tending to show that said Sadie Penney was living with the deceased as his wife at the time of his death, and that from this there was a presumption that she was his wife. But whatever presumption might arise from that fact was idearly rebuttable. The only evidence on this point was that of the witness Blakely, who testified that he had seen Sadie Penney once, and when asked if she was living with Rufus Penney as his wife, answered, “Yes, sir.” But he did not know that this was the same Sadie Penney who brought the suit to recover for the death of Rufus Penney. On cross-examination he stated that all he knew about her was what he had heard, and that he had also heard that she was not his widow but that she was his mistress. The plaintiffs’ testimony showed that Rufus Penney had theretofore been married to the mother of the plaintiffs, but that she had been divorced from him.

The most that can be said of Blakely’s testimony is that it tended .to show a general reputation that the deceased Rufus Penney had been married to the. said Sadie Penney and the learned counsel for the defendant cites Cargile v. Wood, 63 Mo. 501, in which it is held that from cohabitation and reputation the marriage relation may be proven, but in the same case it is said that if there is a conflict in the report, that is, of the reputation that the parties were married, it will not establish the marriage. But this question of whether Rufus Penney left a widow surviving him at the time of his death, was a question of fact which was submitted to the jury and they found that he had no widow surviving him. The defendant did not request an instruction submitting this question to the jury and therefore by its conduct abandoned that contention.

III. The defendant insists that its demurrer to the evidence should have been sustained on the ground that Rufus Penney’s own negligence was the direct and proximate cause of his death, in that he placed himself voluntarily in a position of peril and remained there when he knew the cars were likely to be moved and when he was not in a position to see when the signal to move was given, nor was he where his danger was known to the other men of the crew. This contention is based upon two propositions, first, that the deceased at the time of his death was not in the discharge of his duties, but had unnecessarily placed himself in a place of great danger, and, second, that at the time of his death, deceased had placed himself in a position of such obvious danger that he was guilty of contributory negligence. As to the first proposition, it would seem that there is little ground for the contention as to what were Penney’s duties. His fellow switchmen, Sparks and Blakely, both testify. Sparks said there were no printed rules governing the action of the switching crew in these matters. He was then asked by the court, “Whose duty was it to ascertain whether or not the car had been unloaded?” and he answered, that it was his duty and he was assisted in the discharge of that duty by Penney and Blakely. He also testified that he did not give any signal to the engineer to start, and neither did Sparks, nor did he direct Penney to do' so. He testified that Penney was a very careful man; that the ears were not all unloaded at the time of the accident; that it was the duty of the persons connected with the train crew to watch out and be on the lookout to see that there was no danger to any of the persons who were around working in connection with the cars and hogs. That it was the duty of the engineer not to move the cars back until they were unloaded and he had received a signal to do so. Mr. Blakely, the other switchman, testified that Penney was an efficient helper. Prom the place where he was standing at the time Penney was hurt, he, Blakely, could not see the engineer; that he was not expecting the train to be moved because the hogs were not all unloaded. Asked what Penney would do to ascertain whether or not the cars were unloaded, he answered, “Very frequently he would step' in where the cut had been made and the cars cut apart and look up and down the dock to see that the dock was clear. ’ ’ That it was the practice and custom of the switchmen to step inside to the dock and look up and down to see if the ears were all unloaded, and if they were they would give the signal to couple up and move, and it was the duty of the engineer to let the cars stand still until he received such a signal; that it was always the duty of the switchmen to look before the cars were moved. That it was a part of Penney ?s duty to see if the dock was clear. "When counsel for the defendant attempted to show by this witness that it was no part of Penney’s duty, but that the duty devolved upon Sparks, the foreman, and the witness, Blakely, the witness answered, “We were all there for the same purpose;” and when asked if Penney did not know when he stepped in between the cars "that witness was likely at any time to give the signal, he answered, “Not before the hogs were out.” He also testified that he did not give the engineer any signal to move, and no one else did. Accordingly, we think the record tends to show that Penney at the time of his death was in- the line of his duty, and hence the doctrine invoked that if a servant departs from his duty and goes outside of the scope of his employment and assumes a position of hazard and danger, he can not recover, does not apply to the facts developed in this case. But it is said on behalf of the defendant that the fact that there is a custom to do a thing in a certain way is no defense to a plea of contributory negligence when the manner of doing a thing is per se negligent. As to this proposition no authority is necessary; it is self-evident. But this whole contention is based upon the assumption that the deceased knew that the engine would be started without a signal from either himself or his fellow switchmen and without warning from the engineer, whereas the whole testimony tends to show that it was the duty of the engineer not to move the cars' until he had received a signal either from Penney or one of the other switchmen, and that he was not called upon to anticipate that the engine would be moved until all the hogs were unloaded, and not then until the engineer had given a proper warning, and it was agreed on all sides that the hogs were not unloaded, and the great weight of the testimony was to the effect that the engineer did not give a warning of his intention to move, although he and his fireman testified that he did. Accordingly, we are unable to accept the contention of the defendant that the deceased in going between the cars and in the open space, was guilty of such contributory negligence as would bar a recovery by his children. In Black v. Railroad, 172 Mo. l. c. 190, it was said by Burgess, J.: “It is clear that the accident was the result of negligence on the part of the engineer to whose engine-the cars were attached that occasioned it. He had stopped the train in obedience to a signal from the plaintiff as switchman.. He was also signaled by plaintiff in accordance with the custom of the yardmen to stand still, hut in disobedience or non-observance of these signals, and without any signal of any kind whatever, he put his engine in motion, backed up, caught plaintiff in between the damaged car and the one to which it was attached, thereby crushing his body, and seriously injuring him.” That case, as to the question now under consideration, is identical in principle with the case before us, save only that the plaintiff in that case was in a more dangerous position than the deceased in this case.

But in this connection the defendant complains of the refusal of its ninth instruction. That instruction is as follows:

‘ ‘ The court instructs the jury that if you find from the evidence that the deceased, Penney, went into the cut between the cars and took a position in which he placed himself, leaning against the dock and smoking his pipe while in that position, and if you further find from the evidence that the engineer was required to move said car at any moment on a signal given to him by the foreman Sparks or by the helper, Blakely, and if you further find from the evidence that the deceased, Penney, knew this fact, then the deceased, Penney, was guilty of contributory negligence and plaintiffs can not recover in this case. ’

That instruction leaves out the controlling point in the case, injthat it fails to instruct the jury that if ihe engineer was required to move the train upon a signal from Sparks or Blakely, and if the jury find that the engineer did move it upon such a signal, there can be no recovery. The fact that the engineer was required to move the train upon such a signal would avail nothing if such a signal in fact was never given to him, as evidence for the plaintiffs clearly tends to show. Both Sparks and Blakely testify that they gave the engineer no signal, nor does the engineer assert that- he received a signal from either of them. Notwithstanding Penney might have known that, if such a signal was given the engineer, he would obey it, the evidence tends to show that he knew or at least had the right to believe that no such signal would be given until the train was unloaded and a signal had been given to the engineer to. start.

In this connection it is argued by counsel for the defendant that the giving of its third instruction did not cure the refusal to give its ninth instruction. The third instruction was as follows:

‘£ The court instructs the jury that if you find from the evidence that plaintiffs’ father negligently placed himself in a place of danger by going in between the cut of the cars and that the placing himself in such a position of danger directlv contributed to the injury of plaintiffs’ father, then plaintiffs are not entitled to recover in this case, and your verdict will be for the defendant. ’ ’

This third instruction was as favorable to defendant as it could ask. As defendant asked and obtained this instruction, it is in no attitude to complain of it. And the twelfth instruction also given for the defendant and the plaintiffs ’ first instruction covered the question of the deceased’s contributory negligence.

IV. Defendant also complains of the refusal of its fourth instruction. That instruction is as follows:

“The court instructs the jury that if you find from the evidence that plaintiffs’ father was not required at the time in the performance of his duties to go in between the cut of the cars and place himself in the position in which he was at the time he was injured, then your verdict will be for the defendant. ’ ’

We think this instruction was fully covered by instructions number three and twelve given for the defendant, which told the jury that if the plaintiffs’ father negligently placed himself in a position of danger, then plaintiffs could not recover, and if the deceased failed to exercise the vigilance and caution which would have been exercised by careful and prudent switchmen under similar circumstances in the discharge of his duty, and the failure to exercise such caution contributed to his death, then plaintiffs could not recover. Moreover, instruction number four leaves out of consideration the usual and proper method for the deceased to perform his duty and does not submit to the jury whether-his act in going between the cars as he did and for the purpose that he did, was negligence. We think no reversible error was committed in refusing this instruction.

After a full consideration of each and every ground urged for a reversal, we are of the opinion there is. no reversible error in the record, and the judgment is accordingly affirmed.

Fox, P. J., and Burgess, J., concur.


source: Caselaw Access Project

author: POX, P. J.

license: Public Domain

text:
    HORACE P. BEAVE v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division Two,
    May 19, 1908.
    1. NEGLIGENCE: Instruction: Not Authorized by Pleading. The petition charged that defendant street railway company “so negligently and unskillfully managed the car on which plaintiff was a passenger, and so negligently maintained said car and the machinery and appliances thereof, and the brakes and running gear thereof, as to cause and suffer said car to collide with the engine and cars of the defendant Missouri Pacific Railway Company upon said crossing, and to cause plaintiff’s injuries aforesaid.” Held, That an instruction which authorized the jury to find for plaintiff if they believed from the evidence that the street railway company failed to “exercise the highest practicable degree of care, as would be exercised by very careful and skillful railroad employees under the same or similar circumstances,” was broader than the petition, and authorized the jury to find for plaintiff on issues not presented by it. The petition is not equivalent to an averment of general negligence — that is, it does not simply allege that plaintiff was a passenger, that a collision occurred, and that he was injured in consequence thereof — but it alleges the specific acts of negligence relied on for recovery, and plaintiff cannot recover for any others.
    2. -: -: Applying Brakes: Slippery Track. Where there was evidence that the car was running fast down a steep, slippery and muddy track, and collided with a railroad engine on a crossing track, and that the motorman did not try to stop it until it was near the crossing, there is evidence upon which to base an instruction which tells the jury that if the motorman negligently managed the brakes and running gear thereof, etc.
    3. -: Instruction for Another Defendant. Where the jury found against the street railway, but in favor of the steam railroad, the plaintiff is not responsible for error in an instruction asked and given for the steam railroad.
    4. -: Accident: No Evidence: Instruction. It is improper to instruct the jury that they will find for defendant if they believe the injury was the result of an accident when there is no evidence that it was the result of an accident. Where the collision of a street car with the train of a railroad was due either to the negligence of the motorman, the defective condition of the brake, or the steep and slippery condition of the track, no instruction excusing defendant if the collision was the result of mere accident should be given.
    5. HYPOTHETICAL QUESTION: Assumed Fact: Concussion of Brain. Where there is conclusive evidence tending to prove a fact in the case, it is not error to assume in the hypothetical question that such fact exists. Where the evidence shows that plaintiff’s skull was fractured; that he remained unconscious for seventeen days, and that since he has been unable to labor or to concentrate his mind, it was not error for the hypothetical question to assume that plaintiff sustained “concussion of the brain,” but altogether appropriate, or that he has since been unable to do manual or other labor.
    6. PHYSICIAN: Incompetency. A physician who had charge of the hospital in which plaintiff was placed soon after his injury; who examined him every day or so, because, as he testifies, he was responsible for every person who entered the hospital for treatment; and whose associate and assistant physicians and surgeons, under his supervision, treated and 'operated upon plaintiff for his injuries, is incompetent to testify, over plaintiff’s objections. The mere fact that he did not prescribe for him in no manner changes the rule, if through his assistants he had charge of him.
    7. EXCESSIVE VERDICT: $7,500. The evidence shows that by the collision of the car on which plaintiff was a passenger, with a train, his skull was fractured, and it was necessary to remove a portion thereof; that his brain is now covered and protected with only the scalp and the membranes; that his mind is so affected that he cannot concentrate his attention upon business; that he had become weak and unable to perform manual labor; that his head still pains him when he slightly exerts himself; and that his eyes have become so affected that at the age of thirty-one he has been compelled to put on glasses. Held, that a verdict of $7,500 is very reasonable.
    Appeal from St. Louis City Circuit Court. — Hon. H. D. Wood, Judge.
    Reversed and remanded.

      Edward T. Miller and T. E. Francis for appellant; Boyle & Priest and Morton Jour dm of counsel.
    (1) Instruction 1, given at the request of plaintiff, is erroneous because it authorized tbe jury to return a verdict for plaintiff, if they found that there was any negligence on the part of defendant, instead of limiting them to the particular act of negligence counted on in the petition. Peary v. Railroad, 162 Mo, 96; Ely v. Railroad, 77 Mo. 34; Waldhier v. Railroad, 71 Mo. 514; Price v. Railroad, 72 Mo. 414; Leslie v. Railroad, 88 Mo. 50; Yarnell v. Railroad, 113 Mo. 570; Bunyan v. Railroad, 127 Mo. 12; Hite v. Railroad, 13Q Mo. 132; McManamee v. Railroad, 135 Mo. 440; Bartley v. Railroad, 148 Mo. 124. (2) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence offered by the appellant at the close of the plaintiff’s evidence and at the close of the whole case, because plaintiff introduced no evidence tending to prove that appellant was guilty of the specific acts of negligence averred in the petition. Authorities cited under point 1. (3) Instruction 3, given at the request of plaintiff, is erroneous because it authorized the jury to return a. verdict for plaintiff, if they found that appellant was guilty of negligence in the management of the car and maintenance of its machinery and appliances, when there was no evidence tending to prove such negligence. Evans v. Railroad, 106 Mo. 594; Hutchinson v. Realty Co., 88 Mo. App. 614; McQuillan on Instructions, sec. 99'. (4) Instruction 7, given at the request of the Missouri Pacific Railway Company, is erroneous because it authorized the jury to find against the appellant, if they believed that the motorman could have prevented the car from acquiring so great a velocity that it could not be stopped, in the absence of evidence tending to prove such fact. Evans v. Railroad, 106 Mo. 594; Hutchinson v. Realty Co., 88 Mo. App. 614; McQuillan on Instructions, sec. 99'. There was no evidence tending to show that under these circumstances, the motorman could have prevented the car from acquiring the velocity it did, and the submission of this question to the jury was, therefore, erroneous. Evans v. Railroad, 106 Mo. 594; Hutchinson v. Realty Co., 88 Mo. App. 614; Mc-Quillan on Instructions, sec. 99. (5) The court erred in refusing to give instruction 6, asked by appellant, which directed a finding for it, if the jury believed that plaintiff’s injuries were due to mere accident or misadventure. Sawyer v. Railroad, 37 Mo. 262; Henry v. Railroad, 113 Mo. 537; Masey v. Railroad, 95 Mo. App. 308; Peary v. Railroad, 162 Mo. 99. (6) The court committed prejudicial error against appellant in permitting plaintiff to propound to the witness, Dr. Ring, a hypothetical question as to the permanency of plaintiff’s injuries, which assumed that plaintiff had sustained a concussion of the brain as a result of his injury, that he had been unable to labor and had been unable to concentrate his mind upon anything like clerical work, when there was no evidence in the case tending to establish said facts. Russ v. Railroad, 112 Mo. 48; State v. Brown, 181 Mo. 215'. There is not one syllable of evidence in the record tending to show that plaintiff had sustained a concussion of the brain as a result of his injury. Neither is there any evidence tending to show that he had been unable to labor or to concentrate his mind on anything like clerical work since his injury. (7) The court erred in refusing to permit appellant’s witness, Dr. Brokaw, to testify concerning plaintiff’s condition, because it was shown by the evidence that his information had not- been acquired while attending plaintiff in a professional capacity. State v. Morgan, 196 Mo. 177.

      A.. R. Taylor for respondent.
    (1) The petition in this case in its averments of the negligence of appellant is as broad as the language will permit. So far from alleging a specific negligence as complained by appellant in its brief, only general negligence is alleged in the strictest conformity with the rulings of this court. Under the averments of this petition the negligence of any servant or agent of appellant in any manner connected with the operation of its track or cars would be included. The case of Peary v. Railroad, 162 Mo. 96, is precisely to the contrary of appellant’s claim. And the two cases of Malloy v. Railroad, 173 Mo. 82, and Hennessy v. Railroad, 173 Mo. 88, are also. The latter two cases were founded on a petition less broad' in their averments than in this case, yet this honorable court held in both cases that the petition' covered. every servant in anywise connected with the operation of cars or track. (2) The second and third contentions of appellant’s brief are founded upon the same misconception of. the law. When a passenger is injured by a collision, derailment, breaking of the vehicle or from any cause which the carrier ought to control as a part of its duty as a carrier, the law casts the burden on the carrier to exonerate itself from the implication of negligence, by showing the casualty occurred in spite of the high degree of care imposed by the law on the carrier. This rule of law is venerable with age, and is also full of virility in its age. Lemon v. Chanslor, 68 Mo. 544; Dougherty v. Railroad, 97 Mo. 654; O’Connor v. Railroad, 108 Mo. 243; Clark v. Railroad, 127 Mo. 208; Ochs v. Railroad, 130 Mo. 51; Olsen v. Railroad, 152 Mo. 432; Lee v. Knapp, 155 Mo. 642. (3) The fourth point made by appellant for reversal is amenable to the following objections: It is a complaint against its codefendant Missouri Pacific Railway Company, not against this respondent. If this instruction could be held erroneous, this respondent presents clean hands and a clean conscience, as to it. We are not to be held culpable for the misdeeds of the Missouri Pacific in the trial. Whilst this instruction was being asked and given we were powerless to.prevent it. We sat “like patience on a monument smiling at grief.” With the errors in the instructions between these defendants this respondent had no part. Taylor v. Railroad, 137 Mo. 368; O ’Rourke v. Railroad, 142 Mo. 357.
   POX, P. J.

— The plaintiff instituted this suit in

the circuit court of the city of St. Louis against the St. Louis Transit Company, United Railways Company of St. Louis and the Missouri' Pacific Railway Company, to recover the sum of $25,001) damages on account of personal injuries sustained by him, caused by the alleged negligence of the defendants in permitting a street car of the Transit Company, on which plaintiff was a passenger, to come in collision with an engine and train of cars belonging to and moving upon the tracks of the Missouri Pacific Company, at the intersection of those railroads on Chouteau avenue, in the city of St. Louis.

The cause was dismissed as to the United Railways Company, and upon a trial had the jury found for plaintiff against the Transit Company, and assessed his damages at the sum of $7,500', and in favor of the Missouri Pacific Railway Company. After taking the proper preliminary steps, the Transit Company appealed the canse to this court.

The material allegations of the petition in so far as relate to the Transit Company are substantially as follows :

‘ ‘ The plaintiff states that defendants are corporations by virtue of the law of Missouri, and were such at the times stated. That at said times defendants, St. Louis Transit Company and United Railways Company of St. Louis, were operating the street railway and car herein mentioned for the purpose of carrying passengers for hire, and at said times the Missouri Pacific Railway Company was a steam railroad, and operated the railway and engine and cars herein mentioned as colliding with the car on which plaintiff was a passenger, and also maintained the gate and watchman at the street crossing herein mentioned. That on the 13th day of August, 1903, the plaintiff was a passenger on the car of defendants, St. Louis Transit Company and United Railways Company of St. Louis, proceeding west on Chouteau avenue, an open public street within the city of St. Louis, at the crossing of said street, with the railway track of defendant, Missouri Pacific Railway Company, when said street car was collided with by an east-bound engine and train of defendant Missouri Pacific Railway Company, and plaintiff was thereby greatly and permanently injured upon his head and body, leg and back and chest. His skull was crushed, and the bones thereof broken, and the plaintiff sustained internal injuries and his nervous system was permanently injured.

“And plaintiff avers that the servants of defendants, St. Louis Transit Company and United Railways Company of St. Louis, so negligently and unskillfully managed said car on which the plaintiff was such passenger, and so negligently maintained said car and the machinery and appliances thereof, and the brakes and running gear thereof, as to cause and suffer said ear to be collided with by the engine and cars of the defendant Missouri Pacific Railway Company upon said crossing, and to cause plaintiff’s injuries as aforesaid.

“That by his injuries so sustained, the plaintiff has suffered great pain of body and mind. Has been permanently crippled and disabled from labor and his avocation as a clerk; has lost and will lose the earnings of his labor and avocation; has incurred large expenses for medicines, medical and surgical attention and nursing, and his health permanently injured and his memory impaired to his. damage in the sum of twenty-five thousand dollars, for which sum he prays judgment.”

The answer of the Transit Company was a general denial.

The answer of the Missouri Pacific Company was, first, a general denial; second, contributory negligence; and, third, at the time of plaintiff’s alleged injury there was in force in the city of St. Louis an ordinance No. 21113, approved April 5, 1903, wherein it is provided by subdivision 2 of section 1760A thereof that “at all points where the street car tracks may intersect or cross any steam railroad track, every street car shall be brought to a full stop not less than ten nor more than twenty-five feet from nearest point of intersection, and shall not proceed to cross said railroad track until, upon sufficient investigation, the conductor or other proper agent, appointed by the company for that purpose, is assured there is no danger of collision, whereupon the person in control of said car shall be signalled to proceed.” That neither of the defendants —St. Louis Transit Co., or the United Railways Co. of St. Louis — complied with either of said, provisions of said ordinance on the occasion of plaintiff’s alleged injury; and that his injuries were due solely to the failure of said St. Louis Transit Co. or United Railways Co. of St. Louis to comply therewith, and not in consequence of any negligence of this defendant.

The plaintiff, for reply to the separate amended answer of the defendant, Missouri P'acific Railway Company, denies the allegations thereof.

The plaintiff introduced evidence tending to prove the following facts: That the Transit Company’s tracks cross those of the Missouri Pacific at right angles on Chouteau avenue; that he was a passenger on the car of appellant, west-hound on Chouteau avenue, and was sitting near the rear end thereof; that there is quite a decline on Chouteau avenue from the east to the west at and near the point where the tracks cross each other; that at the time of the accident the street car tracks were wet, muddy and slippery; that the car ran down the decline toward the Missouri Pacific tracks at a “pretty fast gait;” that the motorman attempted to stop the car before it reached the railroad crossing, but did not quite succeed in doing so; that in the meantime the Missouri Pacific engine had almost reached the crossing, and in order to avoid a collision the motorman started the car up quickly, but before it cleared the tracks it was struck by the engine and derailed ; that in the collision plaintiff was knocked down and injured, and was found lying by the side of the track unconscious shortly after the accident occurred, and remained unconscious for seventeen days. The evidence tended to show that in the collision he received a fracture of the skull which required an operation to be performed and the removal of a portion of the skull an inch in width by one and a half or two inches in length; that the injuries affected his eyesight and necessitates his using glasses; that his strength and memory are so impaired that he can no longer perform his duties as clerk, or perform manual labor, except to carry a little wood at times; that every exertion gives him severe headaches; and that his injuries were permanent. That prior to his injuries he was strong- and in good health, and never wore glasses. He was thirty-one .years of age and was working for a railroad at $50 per month as a clerk. That he had incurred $25 for medicines and $260 for medical and surgical treatment, and was confined to the hospital for almost two months, and, after that, at the home of his sister for one month.

The defendant Tfansit Company then offered a demurrer to plaintiff’s evidence, which was, by the court, overruled, and it duly excepted.

It then offered evidence tending to prove that the motorman in charge of the car was not guilty of negligence in operating the car, nor in handling the appliances with which it is controlled; that the wet, muddy and slippery condition of the tracks caused the wheels of the car to slip and slide along the rails and thereby prevented the motorman from stopping the car before it reached the crossing. That plaintiff’s injuries were not permanent; that he would fully recover from the effects thereof, and had practically recovered at the time of the trial. The Transit Company also introduced evidence tending to prove that the injury to plaintiff was caused by the negligence of the Missouri Pacific Company, but as it is not a party to this appeal it will serve no useful purpose to state the substance of that evidence here.

Dr. A. V. L. Brokaw testified for appellant as follows: He is a physician and surgeon, a graduate of Missouri Medical College and had practiced his profession since 1885. That he had seen the plaintiff, from time to time, while he was confined in St. John’s Hospital. He was not under witness’s care. He was under the care of Dr. Brown, who was associated with witness in the work at St. John’s Hospital as junior surgeon. Witness was surgeon in chief at said hospital.

Counsel for plaintiff, Mr. Taylor: “Q. Doctor, whatever information you have in regard to the condition of the plaintiff Beave you obtained from him while he was in your charge or under your control, for the purpose of enabling you to prescribe for him, is not that so? A. He was not under my charge at all. He had been operated on by Dr. Brown, and Dr. Brown was responsible for every feature and phase in the case.

“Q. I understand, but Dr. Brown was your subordinate? A. Yes, he is my associate.

‘1Q. Now, I ask you if it is not true that whatever information you received or obtained in regard to the condition of this plaintiff was obtained by you while he was under your care and that of Dr. Brown? A. He wasn’t under my care. He was under the care of Dr. Brown, and Dr. Brown consulted me concerning the case.

“Q. Well, when you looked at him and examined him you obtained whatever information you did obtain as to his condition for the purpose of enabling you to prescribe for him or to help treat him? A. Never prescribed for him in my life.

“Q. Or to treat him? A. I never dressed bim, I don’t believe, in my life.

“Q. What did you look at him for? A. Because he was an inmate of the hospital, and because I am responsible for everybody that goes into that hospital, surgically, that is directly and indirectly under my care.

“Q. And you looked, at him for the purpose of enabling you to suggest a treatment for him, didn’t you? A. I had no suggestions to make. The men who treated him were perfectly competent to treat him.

“By the Court: The question is whether you looked at him for that purpose. A. I looked at him like I do every other person in the hospital. I go through the wards and through the rooms and see the cases that are operated on by myself or by my assistants, and as far as indicating any line of treatment, why, they are supposed to be competent to carry that out themselves.

‘1 Mr. Taylor: I understand, but you look at them to see that they are properly taken care of, and you obtained whatever information you got under those conditions by looking at him, to see whether he was being treated right, that is true, isn’t it? A. Yes, you might put it that way.

“Mr. Taylor: I object to the competency of the evidence.

“Mr. Jourdan, counsel for defendant: Doctor, what physicians had charge of this ease? A. Dr. Nietert was called in, I believe, by some member of his family, and Dr. Nietert and Dr. Brown had charge of the case. I had absolutely nothing to say. If Dr. Nietert had any suggestions to make, Dr. Brown carried out his suggestions.

“Q. Well, what physicians were in charge of his case? A. Dr. Rader, I think is the name, and Dr. Nietert. There were two doctors in there.

“Q. And they were independent of the hospital were they? A. Oh, they were absolutely independent. They haVe absolutely no connection with the hospital, and my going in there was through the courtesy of those gentlemen, practically. Dr. Brown had operated on him, and they naturally knowing that Dr. Brown was my assistant, I took an interest in watching the outcome of the case.

“Q. And properly so? A. And properly so.

“Q. Were you ever consulted by the plaintiff or asked to prescribe? A. I don’t think directly. Tie had some minor dressings put on at the office. After he left the hospital he came to the office, and Dr. Klinefelter, another assistant, dressed him, and I saw him from time to time.

“Q. But I mean after he left the hospital were you ever requested by him to treat him? A. Oh, n0‘, he made no request of me. I simply saw him and he knew I was the surgeon in chief at the hospital, and it was my privilege, through the courtesy of these doctors, to go in and see him and see that he got along well and got every attention.

“Q. Now, doctor, you may state his condition as you saw it two or three days before he left the hospital.

“Mr. Taylor: I object to that on the ground that he was in the relation of physician and patient. He was the chief surgeon there. He stated that what he learned he learned while he was investigating to see whether this man was being treated properly. That would be for the purpose of enabling him, in case the treatment was not proper, to prescribe a proper treatment, and I say he comes within the inhibition of the statute which prohibits a physician or surgeon, as it does other professional men, from testifying against the patient.

“Objection sustained. To which ruling of the court defendant, St. Louis Transit Co., then and there duly excepted.

“Mr. Jourdan: You may state, doctor, if at the time he left the hospital he had entirely recovered from the wound he had received in this accident on the 13th of August? A. Aside from some little minor dressing, there was no necessity for his remaining in the hospital, and he was advised, I presume, by Dr. Nietert that he didn’t need to stay there. I never discharged him.

“Q. You say you had seen the patient frequently during his stay in the hospital? A. Yes, sir, I saw him every day or two, or every few days.

“Q. You saw his condition a day or two after the accident?- A. Yes, sir.

“Q. And you knew his condition about the time he left the hospital? A. Yes, sir, and after he left the hospital.

“Q. Now, Doctor, I will get you to state, consideding the age and physical condition of the plaintiff and the character of the wound and injury, if, in your opinion as a physician and surgeon, his injury is permanent, or will he entirely recover from it?

“Mr. Taylor: Now, Doctor, I understand that you didn’t examine him after he left the hospital at all,, did you? A. Oh, yes, sir, I did. I saw him at the office when he was dressed several times, talked to him frequently, probably two or three times.

“Q. Who dressed his wounds then? A. Why, Dr. Klinefelter — any of Ms assistants that happened to be there. There are six of them there. I don’t know who dressed him.

“Q. Well, they were your subordinates? They were under you, weren’t they? A. Yes, sir.

££ Q. And what were you looking at him for, looking at this work being done, this dressing, what did you look at him for? A. I was interested in seeing the outcome of the case.

“Q. You were interested in seeing that they were properly dressed, weren’t you? A. Well, that is not necessary. They are dressed properly.

“Q. Well, I understand, there was something now, that drew your attention there—

“Mr. Jourdan: Well, I submit that this examination has no connection with my question.

“Mr. Taylor: I submit that it has, because you are undertaking now to qualify him at some period after he left the hospital. Now, I submit, if your Honor please, that whenever that man there supervising this work, seeing this man for the purpose of suggesting treatment or seeing that his treatment was well done, under the statute his lips are sealed.

“Mr. Jourdan: I asked, him his opinion as a physician and surgeon.

“Mr. Taylor: Well, but if it is derived from what he saw, then he cannot give it. You can put a hypothetical case to him.

“By the Court: What a physician observes in regard to the physicial condition of a party is as much a part of the examination as any other act that he may perform professionally. His knowledge is derived while acting as physician for the patient, and is just as much privileged as communication between the patient and the physician. I understand, that St. John’s Hospital, to which the doctor refers, is an institution under his charge, and that Dr. Brown was an assistant under him, and that this doctor at the doctor’s office who applied these dressings is also an assistant under him, so that the two eases are parallel. You may examine further, if you desire, on that.

“Mr. Taylor: Well, I object to it being founded on any information he got in the manner indicated.

“Objection sustained. To which ruling of the court defendant Transit Company then and there duly excepted. ’ ’

The defendant Missouri Pacific Company introduced evidence tending to show that it was not guilty of negligence which contributed to the injury. It also introduced the ordinance set out in its answer, and evidence tending to show that the car of the Transit Company did not' stop before passing over the crossing as required by that ordinance.

At the close of all the evidence in the case the Transit Company renewed its demurrer to the evideuce, which was by the court overruled, and it duly excepted. Thereupon the court gave and read to the jury the following instructions at the instance of the plaintiff:

“1. The court instructs the jury that if they find from the evidence that the defendant St. Louis Transit Company was operating the car mentioned in the evidence for the purpose of carrying passengers for hire as a street railway; and if the jury find from the evidence that on the 13th day of August, 1903, the St. Louis Transit Company by its servants in charge of the said car, received the plaintiff as a passenger thereon to he carried to his destination on said car; then the court declares the law to he that the St. Louis Transit Company, hy its servants in charge of said car, were hound to exercise the highest practicable degree of care, such as would he exercised by very careful and skinful railroad employees under the same or similar circumstances in the management of said car to carry the plaintiff safely as such passenger, and if they failed, to do so and thereby directly contributed to cause the injury to the plaintiff mentioned in the evidence, said defendant is liable in this case.

“2. The court instructs the jury that if they find from the evidence that the plaintiff was a passenger upon the car of the defendant St. Louis Transit Company mentioned in the evidence on the 13th day of August, 1903; and if the jury find from the evidence that whilst the plaintiff was such passenger on said car proceeding westward on Chouteau avenue, a public street within the city of St. Louis, said car was struck by an engine of defendant, Missouri Pacific Railway Company, mentioned in the evidence, at the crossing of said defendant’s track with said Chouteau avenue in the city of St. Louis, and that thereby the plaintiff sustained the injuries mentioned in the evidence; and if the jury find from the evidence that as said engine ran toward and upon said crossing, the hell upon said engine was not rung eighty rods from said crossing, and kept ringing until said engine passed over said crossing; and if the jury believe from the evidence that such failure to so ring said bell directly contributed to cause said collision and plaintiff’s said injuries; and if the jury find from the evidence that the plaintiff was exercising ordinary care at the time of his injuries, then the plaintiff is entitled to recover against defendant Missouri Pacific Railway Company.

“3. If the jury find from the evidence in this case that on the 13th day of August, 1903, defendant St. Louis Transit Company was operating the street ear mentioned in the evidence to carry passengers for hire; and if the jury find from the evidence that on said day the plaintiff was a passenger on said defendant’s car going west on Chouteau avenue, a public street within the city of St. Louis; and if the jury believe from the evidence that whilst the plaintiff was such passenger on said car going west on Chouteau avenue in the city of St. Louis, said car was collided with by an engine of the defendant, Missouri Pacific Railway Company, at the crossing of its tracks on Chouteau avenue, and that thereby the plaintiff received the injuries mentioned in the evidence; and, if the jury find from the evidence that defendant, St. Louis Transit Company, by its servants in charge of said car, and the machinery and appliances thereof, could by the exercise of the high degree of care of skillful and careful railroad employees under the same or similar circumstances, in the management of said car and maintenance of its machinery and appliances, have prevented said collision and plaintiff’s injuries, then the defendant, St. Louis Transit Company, is liable, and the verdict should be for the plaintiff against said defendant; and if the jury further find from the evidence that as the engine of defendant Missouri Pacific Railway Company mentioned in the evidence ran to and on said crossing, the hell on said engine was not rung eighty rods from said crossing and kept ringing until said engine crossed said street; and if the jury find from the evidence that such failure to ring said bell directly contributed to cause said collision and plaintiff’s said injuries; and if the jury find from the evidence that the plaintiff was exercising ordinary care at the time of his injuries, then plaintiff is entitled to recover against both the St. Louis Transit Company and the Missouri Pacific Railway Company.”

Instruction number 4, given by the court in behalf of plaintiff, was on the measure of damages.

To the giving of which instructions, and each of them, defendant, St. Louis Transit Company, then and there duly excepted.

Thereupon the court gave, on behalf of the Missouri Pacific Railway Company, among others, the following instruction:

“7. The court instructs the jury that the facts that the rails of the defendant Transit Company were slippery and Chouteau avenue was muddy, do not excuse said Transit Company from failing to comply with the ordinance read in evidence by the defendant, the Missouri Pacific Railway Company, provided you believe from the evidence that the person or persons in charge of the street car with which the Missouri Pacific train collided could, by the exercise of the care defined in instruction number 1, have prevented said street car from acquiring so great a velocity that it could not be stopped before reaching the tracks of the Missouri Pacific Railway Company on Chouteau, avenue. ’ ’

To the giving of which said instruction, the defendant, St. Louis Transit Company, then and there duly excepted.

Defendant, St. Louis Transit Company, requested the court to give the following instruction, without the italicized words, but the court refused to give said instruction in said form, but amended the same by inserting said italicized words, and gave same as amended, to which action of the court in refusing to give said instruction as asked, and amending the same, and giving same in said amended form, said defendant then and there duly excepted. Said instruction, as given, was as follows:

“5. You are instructed that if you find and believe from the evidence that, when the car approached the Missouri Pacific crossing immediately prior to the accident, by reason of the condition of the track and of the refusal of the brake or reverse power to take or become effective, the St. Louis Transit Company’s motorman was unable by the exercise of the highest practical degree of care such as would be exercised by a very careful motorman, to stop the car, and that in his attempt to stop the car he used all the instrumentalities at his command, and that notwithstanding his effort to stop the car, it slid down and on to said railroad track, and was struck by a Missouri Pacific engine, then in that case the St. Louis Transit Company’s servants and employees were not guilty of negligence, and your verdict must be for the St. Louis Transit Company. ’ ’

Defendant Transit Company also requested the court to give the following instruction:

“6. If you find and believe from the evidence that the plaintiff’s injuries were directly due to the negligence of the servants and agents of the Missouri Pacific Railroad Company, or that they were due to mere accident or misadventure, then the plaintiff cannot recover against the St. Louis Transit Company, and your verdict will be for that defendant.”

Which instruction the court refused to give, to which action said defendant then and there duly excepted.

The cause being submitted, to the jury they returned a verdict finding the issues for the plaintiff and assessing his damages at the sum before stated, $7,500.

Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Judgment was entered against the d.efendant, St. Louis Transit Company, in conformity to the verdict. From this judgment the’ defendant Transit Company prosecuted its appeal to this court and the record is now before us for consideration.

OPINION.

The record before us discloses the following assignment of errors:

1. The court erred in giving plaintiff’s instruction number 1..

2. The court erred in refusing to give the instructions in the nature of a demurrer to the evidence offered by the appellant at the close of plaintiff’s evidence and at the close of the whole case.

3. The court erred in giving plaintiff’s instruction number 3.

4. The court erred in giving instruction number 7 for the Missouri Pacific Railway.

5. The court erred in refusing defendant’s instruction number 6.

6. The court erred in permitting plaintiff to propound to witness, Dr. Ring, a hypothetical question which assumed facts not shown to exist by the evidence.

7. The court erred in refusing to permit appellant’s witness, Dr. Brokaw, to testify as to the condition of the plaintiff.

8. The court erred in refusing to set aside the verdict as excessive.

We will give such attention to the respective assignments of error as their importance demand and require.

I.

The appellant’s first assignment of error challenges the correctness of respondent’s instruction numbered 1. It is contended that that instruction authorized the jury to find for respondent upon issues not presented by the pleadings.

The petition alleged that plaintiff was injured by reason of the fact “that the servants of defendant, St. Louis Transit Company, so negligently and unskillfully managed said car on which plaintiff was such passenger, and so negligently maintained said car and the machinery and appliances thereof, and the brakes and running gear thereof, as to cause and suffer said car to be collided with by the engine and cars of the defendant, Missouri Pacific Railway Company, upon said crossing, and to cause plaintiff’s injuries aforesaid.” Instead of following this allegation of negligence and directing the jury to find for the plaintiff, if they believed he was injured in a collision caused by the negligence of the defendants, in the respect charged in the petition, the instruction authorized them to find for plaintiff if they believed that defendant in any manner or respect failed to exercise “the highest practicable degree of care,” by reason of which plaintiff was injured.

Clearly this instruction submitted to the jury an ■entirely different issue from that presented in the pleadings. The petition charges the injury was caused by the defendant “so negligently and unskillfully managing said car on which the plaintiff was such passenger, and so negligently maintained said car and the machinery and appliances thereof, and the brakes and running gear thereof, as to cause and suffer said car to collide with the engine and cars of the defendant, Missouri Pacific Railway Company, upon said crossing, and to cause plaintiff’s injuries aforesaid;” while the instruction completely ignores that allegation, and authorized the jury to find for plaintiff if they believed from the evidence that the company failed to ‘ ‘ exercise the- highest practicable degree of care, such as would be exercised by very careful and skillful railroad employees under the same or similar circumstances.” This instruction authorized the jury to find for plaintiff if his injury was caused by any negligent act on the part of the employees, whether that act was stated in the petition or not.

The law is well settled in this State that a person will not be permitted to plead one cause of action and recover upon another. [Waldhier v. Railroad, 71 Mo. 514; Feary v. Railroad, 162 Mo. l. c. 96.]

The respondent seeks to evade the operation of the above rule by contending that the petition in the case at bar is so broad in its charges of negligence that it is equivalent to an averment of general negligence, which is a sufficient allegation in cases like this; that is, that, plaintiff would have made a prima-facie case by merely alleging and proving that he was a passenger, that the collision occurred, and that he was injured in consequence thereof. As an abstract proposition of law that contention is sound, and if the petition had been drawn upon that theory, then the instruction in this case would have been a correct declaration of the law. [Malloy v. Railroad, 173 Mo. l. c. 80-82; Hennessy v. Railroad, 173 Mo. 88.] But that rule has no application where the petition, as in this case, alleges the specific acts of negligence relied upon for a recovery. [Feary v. Railroad, 162 Mo. 75, 96; Ely v. Railroad, 77 Mo. 34, 36.]

In the case of Roscoe v. Railroad, 202 Mo. 576, this proposition was exhaustively reviewed by this court, and the rule as above suggested was fully approved, and numerous cases cited in support of the conclusions reached.

The reason for this rule is apparent. By charging the specific acts of negligence relied upon' for a recovery is equivalent to stating that there are no other acts of the company which caused or contributed to the injury; and, if after stating his cause of action, the plaintiff is permitted to introduce evidence of and recover upon another and different cause, not stated in the petition, the defendant would thereby be taken by surprise, and would not be prepared to meet the new issues thus presented. It would be taking an undue advantage of defendant by lulling it into a sense of security from all attack, except in the manner stated in the petition. If, upon the other hand, the plaintiff desired to try his case upon the theory of general negligence, then he should have charged general negligence in his petition so that the defendant would have been informed of the charge it was required to meet, and thereby been enabled to meet and defend that charge.

A rule of pleading which would sanction the right of plaintiff to plead one cause of action and recover upon another, would be more vicious and harmful to the defendant than if there were no pleadings at all filed in the cause, because, if there were no pleadings, the defendant might, with some degree of accuracy, conceive in his own mind, by taking into consideration his relations and dealings with the plaintiff, the charge that he would be called, upon to defend upon the return day of the summons, and in a measure be prepared to meet it; but not so if the plaintiff should be permitted to decoy him from that defense by false charges, and then be permitted to prove and recover upon another. Such is not the law, and we are unwilling to give it our sanction. We are, therefore, constrained to hold that the instruction under consideration is erroneous.

II.

The appellant next insists that the court erred in refusing to give the instruction in the nature of a demurrer to the evidence at the close of respondent’s case in chief, and also at the conclusion of the introduction of all the testimony in the case. We are unable to lend our concurrence to that contention. We are of the opinion that the evidence made out a prima-facie case for plaintiff, and justified the court in submitting it to the jury. [Barth v. Railroad, 142 Mo. l. c. 548-9.]

III.

v The third assignment of error assails instruction numbered 3 given for respondent, because, it is contended, there was no evidence in the case upon which to base it. In substance, it told the jury that if they found the appellant was guilty of negligence in the management of the car, and negligently maintained said car and the machinery and appliances thereof, and the brakes and running gear thereof, and that in consequence thereof he was injured, they would find for the plaintiff.

The evidence discloses that the’servants in charge of the car applied the brake and reversed the power in their efforts to stop it before reaching the railroad crossing, but were unable to do so, and, in consequence thereof, it passed upon the crossing in front of the engine of the Missouri Pacific Railway Company, and was thereby struck and derailed. While this evidence was not as full and clear as it might have been, yet we are unable to say that there was no evidence upon which to base the instruction. While somewhat meager, yet we are of the opinion that there was sufficient evidence to warrant the court in submitting those issues to the jury. It was for them to say, under the evidence and instruction, whether it was the fault of the motorman, the brake or the steep and slippery track that caused the injury.

The conclusions here reached also dispose of appellant’s fourth assignment of error. But independent of this, the respondent is not responsible for errors committed by the court in giving or refusing instructions declaring the rights of the defendants among themselves. He took no part in that and could not have prevented the action of the court in that regard. If error it was in giving said instruction, plaintiff, adopting the quotation as made in the brief of counsel for respondent, could but sit “like patience on a monument, smiling at grief.” [Taylor v. Railroad, 137 Mo. l. c. 368; O’Rourke v. Railroad, 142 Mo. l. c. 352.]

We do not mean to be understood as holding, by what is above stated, that instruction numbered 7 given for the defendant Missouri Pacific Railway Company, is an erroneous declaration of the law, but simply mean to say that as to respondent it is immaterial under the facts of this case.

IY.

Appellant’s fifth assignment of error is untenable, because there is no evidence in the record which tends in the remotest degree to prove the injuries of the plaintiff were the result of an accident. The evidence in this cause shows that they were caused by one of three things, namely: the negligence of the motorman; the defective condition of the brake, or the steep and slippery condition of the track — all of which are inconsistent with the idea of an accident.

This question was fully and carefully considered by this court In Banc in the case of Zeis v. St. Louis Brewing Association, 205 Mo. 638. It was there held that it was improper to instruct the jury that they would find for the defendant if they believed the injury was the result of an accident when there was no evidence in the case which tended to show the injury was the result of an accident. For the reasons there expressed, we have no hesitancy in holding that the court properly refused appellant’s instruction No. 6.

y.

The sixth insistence of appellant is that the court erred in permitting plaintiff to propound to the witness, Dr. Ring, a hypothetical question regarding the permanency of plaintiff’s injuries. It is contended that said question was erroneous because it assumed plaintiff sustained concussion of the brain, and that he had been unable to do manual and other labor since sustaining the injury.

The evidence is undisputed that he sustained a fracture of the skull, and was thereby knocked senseless, and that he remained unconscious for a period of seventeen days, during which time a portion of his skull was removed. While the witnesses in testifying as to his injuries do not use the words “concussion of the brain,” yet the blow received by plaintiff and the result thereof upon his head, did in fact produce concussion of the train. Mr. Webster defines the word “concussion” to mean: (1) “The act of shaking or agitating, especially by the shock or impulse of another body;” and (3) “(Surg.) The shock or agitation of some organ by a. fall or like cause; as a concussion of the brain.” The meaning of the word “concussion” is well known, and it was used in this instance in its common and ordinary acceptation, and could not be misleading to the jury. In fact, it was a most appropriate word to describe that phase of plaintiff’s injury-

The evidence was also uncontradicted that since his injury plaintiff has been unable to labor, except to “carry a little wood sometimes,” and that he has been unable to concentrate his mind on anything like clerical work.

Where there is evidence tending to prove a fact in the case it is not error to assume in the hypothetical question that such fact exists, and for this reason there is no merit to be found to any of the objections lodged against the hypothetical question propounded to Dr. Eing.

VI.

The contention of appellant that the action of the trial court was erroneous in refusing to permit Dr. Brokaw to testify as to the extent of plaintiff’s injuries and his condition while in the hospital and under his control is equally untenable. The evidence shows Dr. Brokaw had charge of the hospital in which plaintiff was placed shortly after his injury; that he examined him every day or so, because, as he testified, he was responsible for every person who entered the institution for treatment; that his associate and assistant physicians and surgeons, under his supervision, treated and operated upon plaintiff for his injuries. The knowledge thus acquired by Dr. Brokaw of plaintiff’s condition falls within the spirit, if not the letter, of the statute which prohibits physicians and surgeons from divulging information acquired by them regarding the ailments of their patients while prescribing for or treating them. The mere fact that Dr. Brokaw did not, in fact, prescribe for or treat plaintiff, in no manner changes the rule, when it is shown that he had charge of the patient through his assistants and that he was being treated by them under his supervision. This identical question came before the court In Banc in the case of Smart v. Kansas City, 208 Mo. 162. It was there held that neither the physician in charge of the hospital, his assistant nor any other physician who visited the hospital and examined the patients with the permission of those in charge, was a competent witness to testify regarding the information acquired by him by such examination or treatment. The conclusions in that case are adverse to the contention of appellant in the case at bar, and are clearly decisive thereof.

VII.

It is finally insisted that the verdict is excessive and that a new trial should be' granted for that reason.

The evidence discloses that plaintiff sustained internal and external injuries of a permanent character; that his skull was so badly crushed that it was necessary to remove a portion thereof, an inch in width by one and a half inches in length; that his brain is now covered and protected by only the scalp and the soft tissues of the head; that his mind is so affected that he cannot concentrate his attention upon his business; that he has become weak and unable to perform manual labor; that his eyes have been so affected that he is compelled to wear glasses; that he suffered great physical pain and mental anguish; that his head still pains him when he least exerts himself; that he is unable to earn a living; and has incurred a liability of about $300 for necessary medicines and medical treatment. For these injuries the jury awarded the plaintiff the sum of $7,500'. When the extent of the injuries and their permanency are considered, we are unwilling to say that the verdict was excessive, but upon the other hand, we are of the opinion that it was very reasonable and is no more than will properly compensate him for the injuries complained of.

We have indicated our views upon the legal propositions disclosed by the record in this cause. The case seems to have been well tried, except for the error pointed ont in paragraph, one of this opinion; but for that error the judgment would he affirmed; but if we are to. longer recognize the doctrine that, where specific acts of negligence are alleged, the recovery must he predicated upon such averments, we see no escape from the conclusion that instruction numbered 1 given for the plaintiff was erroneous and for that reason the judgment should be reversed and the cause remanded for a new trial. It is so ordered.

All concur.