source: Caselaw Access Project

license: Public Domain

text:
    City of St. Louis, Plaintiff in Error, v. Gorman, Defendant in Error.

    1. Where the officers of a municipal corporation, -without authority, assess against a person for taxation land belonging to the corporation, and collect taxes thereon, and return the same as delinquent for nonpayment of taxes, buy the same at the tax sale and convey the same upon redemption, the corporation -will not be estopped, by these acts of her officers and agents, to claim the property as her own.
    2. The adverse possession of a disseizor, or of one who enters without right and retains possession by wrong, can not extend beyond the limits of his actual occupancy.

      3. To constitute color of title some act must have been done conferring some title, good or bad, to a parcel of land of definite extent; a mere disseizor can not resort to the metes and bounds of the tract upon -which he wrongfully enters.
    4. If a person die in adverse possession of a tract of land and his son-in-law succeed him in the possession, the relation he sustains to the deceased will constitute such privity as will entitle him to connect his possession with that of the father-in-law so as to give him the benefit of the latter’s adverse possession.

      Error to St. Louis Land Court.

    This was an action in the nature of an action of ejectment to recover possession of a tract of about sixty acres of land lying within the survey of the common of the city of St. Louis. The land sued for embraces that portion (except a small parcel sued for in the case of St. Louis v. Keitley) of a tract of two by forty arpens lying within the commons of St. Louis. The plaintiff relied upon her commons title, and adduced in evidence various acts of the legislature of Missouri authorizing her to deal with, dispose of, and control her common ; also various ordinances of the city from 1835 to 1856, showing the action of the city with respect to her commons.
    The defendant introduced in evidence, against the objection of plaintiff, De Ward’s map of St. Louis common, upon which the Durand claim as laid down by De Ward was marked out. The defendant also introduced in evidence, against the objection of plaintiff, various tax receipts, tax deeds, certificates of purchase and certificates of redemption, and redemption deeds. From these it appeared, among other things, that in the year 1845, and afterwards, the eastern portion of the tract in dispute — that within the city limits— was assessed for taxation against “ Nicholas Durand,” “ Du-rand claim,” “Durand’s heirs,” “James Gorman.” In 1845 John Corcoran, as shown by tax receipt, paid taxes. The land was returned delinquent for taxes of 1846 and sold to John Corcoran, who received comptroller’s deed. Corcoran died in 1848 leaving several children. The land was returned delinquent for the taxes of the year 1848, was purchased by the city, and redeemed by and conveyed to James Gorman. There were various "tax receipts showing payment of taxes by James Gorman since 1851 and 1852. There was no attempt to show title in or under Durand. Evidence was introduced with á view ta show that James Gorman and his father-in-law, Corcoran, had had adverse possession of the land sued for for more than twenty years before suit was brought.
    The court, at the instance of the defendant, gave the following instructions: “1. If the jury find from the evidence that before the year 1833 one Durand claimed the tract of two by forty arpens of which the premises in controversy are a part; that the boundaries thereof were defined, and the tract mapped out by the plaintiff upon a plat of the survey of the common of the city of St. Louis as a piece of ground claimed under Durand adversely to the city; and that this plat of survey was made as early as 1835 or 1836 ; that until the year-1843 the said tract was wholly without the chartered limits of the city of St. Louis ; that in Í843 the charter of said city was altered so as to include within the city limits so much of said tract as lay to the east of Second Oaronde-let avenue; that thereupon the City of St. Louis caused to be assessed to the defendant or those under whom he claims so much of said tract as lay within the city, describing the same as the property of the defendant or those under whom he claims, and caused the taxes due on said land to be collected and paid into the city treasury; and if the jury shall further find that the possession and claim of the defendant as to the land within the city limits was of the same nature and character with his possession and claim to the remainder of the tract outside of those limits, then this is evidence, not merely of the possession and claim of defendant to the whole of the tract outside as well as inside of the city limits, but of the knowledge and acquiescence of said plaintiff in such possession and claim by the defendant. 2. Neither occupation, cultivation nor residence will be necessary to constitute actual possession of a tract of land when the property is so situated as not to admit of any permanent, useful improvement, and the continued claim of tlie party seeking the protection has been evidenced and accompanied by public, unequivocal and continued acts of ownership and control such as he would naturally exercise over property which belonged to him, and would not exercise over property which did not so belong; and if the jury find in this case that the defendant and those under whom he claims have continuously and uninterruptedly exercised over the land in controversy such public, uneqxiivocal and notorious acts of ownership and control for the space of twenty years before the commencement by the plaintiff of any legal steps to dispossess him or them, and that, during the whole of that period, the defendant and those under whom he claims have denied the title of the plaintiff and claimed the land as their own, then the plaintiff can not recover in this action. 3. The jury is instructed that to constitute an adverse possession of a tract of land there need not be an enclosure, building, or other improvements. It is enough if there be exercised over the property visible and notorious acts of ownership after an entry under claim and color of title. An entry is by color of title when it is made under a real and not a pretended claim to a title held by another. The term itself implies that the party so entering has not the true title, but the law regards him as having color of title if he claims and believes that the land in good faith belongs to him and enters into possession accordingly. If after so entering he and those claiming under him continue for twenty years in the exclusive enjoyment of the tract and in the exercise of open and notorious acts of ownership thereon, he and they are protected by adverse possession and the statute of limitation against all the world. 4. The plaintiff can- not recover against the defendant any part of the land in controversy which lies east of the city’s western line as it stood in 1845 and following, as the same is described in the tax receipt and deed of the city read in evidence. 5. If the jury find from the evidence that for more than twenty years before the commencement of this suit the tract of two "by forty arpens of land, of which the premises in controversy are a part, was recognized and mapped out by the plaintiff as a distinct and definite tract of land within the city commons claimed adversely ; that in 1833 or 1834 one John Corcoran, claiming to be the owner of said tract of two by forty arpens, entered upon the same and built a dwelling-house, and enclosed and cultivated a garden of several acres adjoining thereto, upon the eastern part of said tract, and occupied said house as his dwelling ; that the remainder of said tract was then mostly covered by stone quarries and not susceptible of any permament useful improvement; that said Corcoran, at the time of said entry, took possession of said quarries, and exercised over the remainder of the tract open, visible and notorious acts of ownership and control, excluding from every part of the tract all the persons who did not hold the same under him; that said claim, occupation and acts of ownership and exclusive control were by said John Corcoran and those claiming under him continued for twenty years before the commencement of any legal steps by the plaintiff to dispossess the said Corcoran and those claiming under him, then they must find for the defendant.”
    The plaintiff suffered a nonsuit, with leave, &c.

      Glover 8f Richardson, and 8. Simmons, for plaintiff in error.
    I. All the evidence introduced concerning the tax deeds and tax receipts was improperly admitted, and all the defendant’s instructions grounded on these papers were erroneous. Neither of said supposed deeds was an estoppel on the plaintiff; neither was the act a deed of the corporation. No law or ordinance authorized them. The land was confirmed to and belonged to the city. No city officer could lawfully assess city property for taxes. The assessment was void; all the subsequent steps also were void. (8 Ohio, 187; 13 Louis. 205; 34 Maine, 89; 3 Mass. 419; 1 Bibb, 295; 36 Maine, 433.) Durand never bad any title. No title could consequently pass to the purchaser at the tax sale. It is not attempted to be shown that the forms of law were complied with. Officers of municipal corporations are special agents, acting under special instructions contained in ordinances. Those who deal with them must take notice of these ordinances. The comptroller had no power which did not appear on the face of the ordinances. A corporation speaks or acts only in the mode prescribed by law. (2 Cranch, 167.) No corporation is bound by any unlawful act of its officers though done colore officii. (19 Pick. 511; 13 B. Monr. 563 ; 16 Shepl. 29 ; 8 Day, 495 ; 18 Mo. 227; 1 Hill, 551; 14 Verm. 311; 25 Mo. 503.) The deed to Gorman is void.
    II. Corcoran entered without title or color of title. He ■is limited to his actual occupancy. His possession was adverse only to the extent of his actual enclosures. (Angel on Lim. 420; Adams on Eject. 582.) There is no constructive possession in favor of a trespasser. (Miller v. Shaw, 7 S. & R. 136.) The possession must be marked by definite boundaries. (Adams’ Eject. 572 ; 10 'Johns. 477 ; 19 Penn. 262; 10 S. & R. 303.) It must continue the same in point of locality; must not be a roving possession. Defendant can not connect a part that he has occupied for twenty years with a part that he has occupied for a less time. (27 Mo. 410, 415.) The Durand claim extended east of the commons ; and conceding that his fence encroached upon the common, the city was constructively in possession of the residue of the tract. The city had actual' possession of parts of the commons. (27 Mo. 410, 415 ; Angel on Lim. 432; 10 Mo. 769; Beesly, 461; 1 Hill., S. C. 135.) The defendant showed no privity with Corcoran. The succession must be transmitted by contract or operation of law. (27 Mo. 203; 23 Mo. 336 ; 5 Maryl. 257.) The court erred in giving the third instruction. The definition of color of title is incorrect. What is color of title is a matter of law. (18 How. 59.) There was no evidence authorizing the court to say there was any color of title exhibited by the defendant. There is no evidence that the entry was made under a real claim. It does not appear that defendant or Corcoran claimed in any matter whatever under Durand, or any other person. There must be some appearance of title. (1 Cow. 285 ; 18 How. 56 ; 29 Barb. 323; 10 Barb. 256; 15 Ill. 73 ; 2 Smith L. 0. 484.) De Ward’s map was not color of title. The defendant might with as much propriety claim that the extent of his claim was bounded by the exterior lines of the •survey of commons. (3 Barr, 214; Adams’ Eject. 582.) That map was not made twenty years before the bringing of suit. There was nothing but a wandering, vagrant possession of a few sink-holes in different parts of the tracts for the purpose of quarrying rock. The plaintiff’s instructions should have been given.

      Gantt Sf Gibson, for defendant in error.
    I. The instructions refused were properly refused. The instructions given for Ihe defendant were correct. The city can not assert title in herself to land which for a long time it has caused to be assessed as the property of a private individual, for which it has collected taxes; which it has caused to be returned delinquent for the nonpayment of taxes, and for which, after purchasing it at tax sale, it has executed a deed according to ordinance to the claimant or person to whom it was so assessed. These acts constitute an estop-pel in pais.

    II. The instructions given by the court on the subject of the statute of limitations and adverse possession furnish a correct declaration of the law on 'that head.
   Scott, Judge,

delivered the opinion of the court.

The city being the owner of the land assessed and sold for taxes to the defendant through the instrumentality of her officers, it is maintained by him that she is- estopped to deny the regularity of the proceedings by which he claims title.

The city is a body corporate, clothed with extensive powers for the management of her municipal affairs. She can only act through her officers and agents ; and if those officers, in violation of her ordinances, do unauthorized acts to her prejudice, it would be hard that she should be bound by them. This, surely, is not the law in relation to natural persons who act through their agents. If the agent exceeds his authority, his constituent is not bound. Those dealing with agents must look to the extent of their power. Agencies are indispensable in the transaction of the business of men; and, if those who employ them are estopped to deny the validity of the acts performed by them, commerce must be restrained within very inconvenient, if not ruinous, bounds. The State of Missouri owns a tobacco warehouse in St. Louis ; if the state officers should assess that property in the name of an individual, and sell it for the taxes, would any one maintain that she was estopped to deny the validity of a title claimed under such a sale ? The state has delegated to St. Louis the powers necessary for her municipal government, thus imposing on her an obligation that would otherwise devolve on the state. The city, in the discharge of this duty, is compelled to act by officers. Now, if the state, acting through her officers, is not bound by their unauthorized acts, we can see no reason why the city, in the exercise of functions pertaining to the state and for the performance of which she is substituted in the place of the state, should not stand, in relation to the agents she may employ, on the same ground that the state would to her officers.

We must all see the numberless frauds the sanctioning of the principle insisted on would produce. The argument confounds the city with her officers and assumes that they are the city. If an officer of the city, in violation of her ordinances, makes a contract with an individual, is the city bound by such a contract ? Must not those who contract with the officers employed by the city, see that the officers, with whom they are contracting, conduct themselves in pursuance to law ? The defendant, claiming that he has obtained the title of the city to a portion of her commons through her officers, is compelled to show that these officers, in assuming to pass a title, acted in pursuance to the ordinances prescribed for the regulation of their conduct on such occasions. This is a well established rule in regard to all those deriving title to land by means of a'sale for the tases. The bare statement of the law in relation to estoppels in pais is sufficient to show that it can .not apply to transactions where there is the interposition of third persons as agents acting in violation of their authority. It has thus been stated : “ The rule of law is clear, that where one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is precluded from averring against the latter a different state of things as existing at the same time.” (Pickard v. Sears, 6 Adol. & Ellis, 494.) The same judge more broadly expressed the rule, on another occasion, thus: “ A party, who negligently or carelessly stands by and allows another to contract on the faith and understanding of a fact which he can contradict, can not afterwards dispute that fact in an action against the person whom he has himself assisted in deceiving. (Greggs v. Wells, 10 Adol. & Ellis, 90.)

We do not see the ground on which it can be maintained that Corcoran, under whom the defe'ndant claims, had any color of title. The evidence relied on would just as well show that he had a color of title to all the land unoccupied within the outboundary of the commons. It is not pretended that Corcoran entered under Durand, or that there was any privity in any respect between them. Because the Durand tract, as marked down on the plat, was of certain dimensions and more.sizeable than the entire commons, it seems to have been deemed more politic to make dir the evidence of the extent of the color of title. This is the first attempt here to make the boundaries claimed by the owner of the land evidence of color of title in an intruder. . The effect of this is to do away with all the law in relation t,o color of title, and in every case make the boundary of the person, upon whom the trespass is .committed, evidence of the extent of the claim of the trespasser. Because the city had, by her officers, laid down the claim of Durand on the plat of the commons, there is no principle by which the defendant can claim any benefit from such act, as he does not claim under Durand nor in privity with him. In the case of Pitts v. Gilbert, 3 Wash. C. C. 478, Judge Washington said: It is a clear principle of law that the. right acquired by the adverse possession of a disseizor, or of one who enters or retains possession by wrong, can never extend beyond the limits of the particular spot to which his occupation is confined. If he could go beyond these, there would exist no other to circumscribe his claim. He can not resort to the metes and bounds of the tract upon which he has settled, because the legal possession of the owner continues unaffected by the tortuous entry, except so far as the actual adverse possession has disturbed it.”

The defendant cited a remark made by Judge Gibson in the case of McColl v. Neely, 3 Watts, 69, that he was “ not aware that the definition of a colorable title, or, as it is expressed more frequently, color of title, had ever been attempted. The words do not necessarily import the accompaniment of the usual documentary evidence.” But general expressions in an opinion must be taken with reference to the facts of the case in which they are made; and the application of this remark makes it appear that the case to which reference has been made, so far from being a decision in support of the proposition that there is a color of title in the case before us, its tendency is the other way, and it may be used to show that there is no color of title in the claim on which the defence to this action is made. Angel says that where a deed, relied on as giving a color of title, contains no description of the land, although it is of no moment that the title is defective, yet if no land is described nothing can pass, and therefore such a deed can not be the foundation of an available adverse possession beyond the actual improvement.” (Ángel on Lim. 440.) When we say a person has color of title, whatever may be the meaning of the phrase, we express the idea, at least, that some act has been previously done, or some event transpired by which some title, good or bad, to a parcel of land of definite extent has been conveyed to him. Can the marking of the claim of a stranger upon the plat of his land by the owner confer a color of title on one who has [no] privity in estate, in contract or in law, with the title of the stranger ?

Cases without number might be cited in support of the doctrine that the right acquired by the adverse possession of a disseizor, or of one who enters or retains possession by wrofig, can never extend beyond the limits of the actual occupancy. There is one in which this,subject is very ably treated, and the law so luminously stated by the judges that it should alone suffice. The case to which reference is made is that of Muller and others v. Shaw, 7 Serg. & Rawle, 129. To the same purpose might be cited the case of Barr v. Gratz, 4 Whea. 224.

As'we maintain that Corcoran, under whom the defendant claims, had no color of title, we do not deem it necessary to determine the question whether the possession of a part of her common by the city, in the manner stated in the record, excluded any constructive possession of the defendant, as, he having no color of title, his possession could not extend beyond the limits of his actual occupation.

On the general question of adverse possession, as the case now stands on a nonsuit, and as the jury has never passed upon the evidence in relation to that matter, it is not the usual course here, under such a state of things, to express an opinion upon the facts. We suppose the plaintiff took a nonsuit in consequence of the instruction in relation to the effect of a sale for taxes by the city officers. Although this instruction only affected a part of the land in the controversy, it was sufficient to warrant such a course, as otherwise the plaintiff must have had a verdict against her for so much of the lot as was affected by the instruction. The case of Ewing v. Burnett, 11 Pet. 41, and Draper v. Shoot, 25 Mo. 197, relied upon by the defendant, were very different in their circumstances from that now before us. By taking the law of limitations, as applied to one state of facts, and endeavoring to apply it to a condition of things wholly different, we will never arrive at its correct administration. Surely a man, who has no title nor even color of title to land, who knows that he is wrongfully endeavoring to obtain it by adverse possession, should give to the world the most unequivocal evidence of his intention. It will be for the jury to determine with what intent the stone quarries were worked, and whether the evidence of the adverse possession of the defendant may not be reconciled with the declaration of the plaintiff’s witness, that Corcoran told him that he claimed no part of the commons of the city.

We do not see the point of the defendant’s first instruction. From the view we take of this case the defendant’s instructions were erroneous.

If Corcoran died in possession, his possession would descend on his children; and if the defendant had married one of them, that marriage would constitute such a privity as would entitle him to connect his possession with that of his wife’s father, so as to give him the benefit of the adverse possession of the father.

The judgment is reversed and the case remanded.

The other judges concur.


author: WOODSON, P. J. GRAVES, J.

text:
    WILLIAM J. ANDERSON v. KANSAS CITY RAILWAY COMPANY and KANSAS CITY, CLAY COUNTY & ST. JOSEPH RAILWAY COMPANY, Appellants.
    Division One,
    July 23, 1921.
    1. NEGLIGENCE: Bes Ipsa Loquitur: Unexplained Injury, to Passenger. The rule of res ipsa loquitur applies if the injury to a passenger is shown to have been produced by the breaking clown, or the failure to operate, of the carrier’s interurban car or any appliance thereof. If the car is shown to be under the control of the carrier or his servants, and the accident is such that under the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the • absence of explanation by the carrier, that the accident arose from want of proper care on his part, and the rule applies.
    2.-:-: -: Slamming of Door: Automatic Hinge: Failure to Operate. There was a vestibule in the center of an interurban car, with swinging doors communicating with back and forward compartments, the floors of which were about eight inches above the floor of the vestibule; a single swinging door, standing immediately to the rear of the aisle between the seats of the forward compartment, was hinged on the west side of the aisle and separated the compartment from the vestibule platform; the car was operated with the door open, which was fastened back and inward at right angles to the door jamb by means of springs attached to the bottom of the door with a' holder attached to the car to which the springs were fitted, and the catch operated automatically; the car had stopped, and plaintiff’s wife, a passenger, fifty-eight years of age, with a suitcase in her right hand, intending to alight on the west side of the car, left the forward compartment, preceded by fifteen other persons and followed by three; when' she reached the door and was about to step down to the vestibule platform, she placed her left hand up against the door jamb, and just behind the rear of the door, in order to steady herself, and immediately the dobr closed, crushing her finger. The conductor testified that he examined the catch after the 'accident and found it in good condition, and that testimony was not denied. Held, that it was the duty of defendants to keep the automatic spring or catch in good condition; and an inference of negligence on defendant’s part was raised by the closing of the door, and the burden was on them to explain the occurrence and to - show that they were not guilty of negligence, and the rule of res ipsa loquitur applies to the case. Held, also, that the court could not declare, as a matter of law, that the conductor’s testimony overcame the inference that the defendant was negligent.
    3. ■ — -: -: -: Undisputed Testimony: Question for Jury. Where the door to the vestibule of an interurban car was equipped with an automatic device to keep it open, and when a passenger undertook to alight from the car the door closed, without any negligence or interference on her part, and crushed her finger in consequence of which the rule of res ipsa loquitur applies and the burden is on the carrier to explain the closing of the door, the court cannot declare that the undisputed testimony of the conductor to the effect that after the accident he examined the automatic device and found it in good condition overcame the inference of defendant’s negligence, but the credibility of his testimony is to be determined by the jury.
    Appeal from Jackson Circuit Court. — Eon, Willard P. Hall, Judge.
    Affirmed.

      Cooper, Neel & Wright and L. T. Dry den for appellants.
    (1) The court did not commit error in refusing to give plaintiff’s instruction lettered and numbered P-2. Guffey v. Hannibal Ry. Co., 53 Mo. App. 452, 469; Peck v. Transit Co., 178 Mo. 617; Hornstein v. United Rys. Co., 97 Mo. App. 271. (2) The demurrer to the evidence on behalf of both defendants should have been sustained. Peck v. Transit Co., 178 Mo. 617.

      C. W. Prince, E. A. Harris, J. N. Beery and J. E. Westfall for respondent.
    (1) Where the court does not assign a reason in its order granting new trial the appellate court will look to the grounds in the motion for new trial, including the one that the verdict is against the weight of the evidence and assume that this was one of the reasons actuating the court, and apply the rule that the weight of the evidence is peculiarly within the province of the trial court and that his action in setting aside the verdict will not be interfered with unless manifestly abused. Jiner v. Jiner, 182 Mo. App. 153, 168 S. W. 231; Sharp v. Odom, 121 Mo. App. 565. (2) The sudden and unexpected closing of a door in a car in such a way or manner as .to mash the hand of a passenger, placed thereon for the purpose of steadying herself or rendering more secure her footing, establishes a prima-facie case of negligence" on the part of the carrier. Madden v. Mo. Pac. Ry. Co., 50 Mo. App. 666; Croft v. Railway, 211 Mass. 121; Lake Erie, Ry. v. Cotton, 45 Ind. 586; McCarty v. Railway, 50 Mo. App. 596, 80 S. W. 9; Dougherty v. Railway, 9 Mo. App. 480; Daniels v. Railway, 181 S. W. 599. (3) The law imposes upon the carrier the burden of removing the presumption of negligence which arises from the happening of an accident which causes injury, to a passenger. Madden v. Mo. Pac. Ry., Co., 50 Mo.. App. 666; Lake Erie Ry. Co. v. Cotton, 45 Tnd. App. 580; Ilolleman v. Railway, 12 Gra. App. 755. (4) It is error to instruct the jury on the proposition of accident or unavoidable casualty where the only proof in the entire record shows either negligence of defendants or contributory negligence of the plaintiff. Smion v. Met., 178 S. W. (Mo.) 449; Tallman v. Nelson, 141 Mo. App. 478; Wise v. Transit Co., 198 Mo. 560. (5) The doctrine of contributory negligence does not apply where defendant lured plaintiff into a sense of security. Millsap v. Beggs, 122 Mo. App. 1. (6) Contributory negligence as a matter of law apj)lies only where the peril exists without the intervention of the negligence of the defendant. Sharp v. Lambert, 142 Mo. App. 567.
   WOODSON, P. J.

The plaintiff brought this suit in the Circuit Court of Jackson County against the defendants to recover $6500 damages for loss of services and the society of his wife caused by personal injuries inflicted upon her through the alleged- negligence of the defendants.

The trial resulted in a verdict and judgment in favor of the defendant, and upon a motion for a new trial being filed the court sustained the same, and from the order sustaining the motion the defendants duly appealed the cause to the Kansas Cityr Court of Appeals, which latter court in dire time delivered an opinion written by Bland, J., in which all concurred, affirming the judgment of the circuit court, and upon motion for a rehearing being filed one of the judges dissented from the opinion, believing’ it was in conflict with two opinions of this court, namely, Brown v. Railroad, 256 Mo. 522, and Simpson v. Railway Co., 192 S. W. 739, and consequently certified the cause to this court as provided for by the Constitution of this State.

We have very carefully read the opinion of the Court of Appeals delivered in this case, and are satisfied that it is not in conflict with either of the two cases mentioned. The opinion of. the Court of Appeals is as follows:

“This is a suit by the husband for the loss of the society, companionship, etc., of his wife.
“The facts show that plaintiff’s wife was injured on the 11th day of March, 1917, at 8th Street and Grand Avenue, in Kansas City, Missouri, while a passenger on a car owned and operated by the defendants. The car was an interurban car with a vestibule in the center thereof, with swinging doors communicating with hack and forward ^ compartments where .the passengers were seated. The floor of the compartments was about eight inches above the vestibule. The car in question was stationary and headed south on Grand Avenue. A-single swinging door, twenty-two inches wide, standing immediately to the rear of the aisle between the seats in the forward compartment, the aisle being twenty-four inches wide, was hinged on the west side of the aisle of the car and separated the compartment from the vestibule platform below. The car was operated with this door opened, it being fastened back and inward at right angles to the door jamb by means of springs attached to the bottom of the door with a holder attached to the car to which the springs were fitted. The catch operated automatically. There was a handhold, about forty-eight inches long, in the vestibule attached to the outside wall of the compartment on the west side’, and within two or three inches of the door. But one in leaving the compartment would not'see this handhold unless he knew it was there or looked particularly for it. If one knew the handhold was there, he would have to reach out and around the vestibule in order to get hold of it. It was evidently placed there to assist one in stepping up from the vestibule into the compartment.
“After the car stopped about fifteen people alighted from the forward compartment, followed by plaintiff’s wife, a woman fifty-eight years of age, who was immediately followed by three or four others. She had in her right hand a suit case and when she reached the door and was about to step down to tjie vestibule platform, in order to steady herself, she placed her left band upward against the door jamb and immediately behind the rear of the door, whereupon the door instantly closed, crushing her finger and mashing it, resulting in its amputation. The conductor testified that after the accident he examined the catch and found it in good condition. There was no testimony on the part of the plaintiff to deny this testimony of the conductor.
“The petition alleged the relationship of carrier and passenger, followed by a charge of general negligence. Plaintiff tried his case on the res ipsa loquitur theory. There was a verdict and judgment for the defendants. Plaintiff filed a motion for a new trial, which the court sustained, assigning no reason therefor, and defendants have appealed.
“The court refused to give plaintiff’s Instruction No. P-2 which covered his res ipsa loquitur theory. This instruction sought to tell the jury that in the absence of negligence on the part of plaintiff’s wife an inference of negligence on defendant’s part was raised by the closing of the door and that the onus was upon defendants to explain the occurrence and that they were not guilty of negligence. Plaintiff insists that the facts in this case show that this is a res ipsa loquitur case and that his Instruction No. P-2 should have been given. Defendants insist that the court erred in granting a new trial for the reason that there was no error and, in addition, that their demurrer to the evidence should have been sustained, because, first, the case is not a res ipsa loquitur case and defendants were not shown to have been guilty of any negligence; second, that plaintiff was guilty of contributory negligence as a matter of law.
“We think that this was a res ipsa loquitur case. The rule is said to be brought into play ‘Where the vehicle or conveyance is shown to be under the control or management of the carrier or his servants, and the accident is such as under an ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by tbe defendant, that the accident arose from want of proper care.’ [Madden v. Mo. Pac. Ry., 50 Mo. App. 666, l. c. 677.]
“The rnle is said to be applicable if the injury is shown to have been produced ‘by the breaking down or failure of the carrier’s vehicle, roadway or other physical appliances.’ ” [Dougherty v. Mo. Pac. Ry., 9 Mo. App. 478, 480.]
“The door which closed, injuring' plaintiff’s wife, was equipped with an automatic spring device to keep the door open. At the time of the injury it was not performing its function as a door, as the conductor testified that: ‘It stands open; we keep them open; it had been fastened. Q. It stands open during the trip? A. Yes, sir.’ It was the duty of the defendants to keep the automatic catch or spring in good condition. The car was not in motion and no explanation appears in plaintiff’s case as to how the door came to close. Under prdinary circumstances the door would, not likely have closed. The fact that it did not perform its function at the time it closed upon the hand of plaintiff’s wife speaks for itself and raises an inference that it was defective. [Och v. M. K. & T. Ry. Co., 130 Mo. 27, 51; Jorden v. Railroad, 122 Mo. App. 330, 335; McCarty v. Railway Co., 105 Mo. App. 596; Lemon v. Chanslor, 68 Mo. 340; Jenkins v. L. & N. Railroad Co., 104 Ky. 673; Carroll v. Railroad, 99 Wis. 399; White v. Boston & Albany Railroad, 144 Mass. 404; Horn v. New Jersey Steamboat Co., 48 N. Y. Supp. 348; Cramblet v. Ry. Co., 82 Ill. App. 542; Weir v. Union Ry. Co., 98 N. Y. Supp. 268; Chicago City Ry. Co. v. Carroll, 102 Ill. App. 202; Allen v. United Traction Co., 73 N. Y. Supp. 737.]
“Defendant has cited two cases where the facts seem to be in many features like the facts in the case at bar. These cases are Christensen v. Oregon Short Line, 99 Pac. (Utah) 676, and Goss v. Northern Pac. Ry., 48 Ore. 439. Plaintiff was denied recovery in those cases for the reason that defendant’s evidence tended to show that after the injury the catch was examined and found to bo in good condition. However, it would seem that in both cases there was no positive evidence that the door was pushed back where it would be securely fastened by the catgli, if a good one. There was evidence in this case, as already stated, that defendants kept the door opened and caught back all the time the car was in use. The conductor’s station was in the vestibule. He stood practically at the door itself and it must have been under his eye practically all the time. It was held under the evidence in those cases that the inference of negligence, if any, arising from the closing of the door, was overcome as a matter of law by defendant’s evidence. This is not the rule in this State. Under our decisions it is within the exclusive province of the jury to pass upon the credibility of the witnesses, and it may refuse to believe any witness or witnesses. [Simpson v. C. R. I. & P. Ry. Co., 192 S. W. 741; Brown v. Railroad, 256 Mo. 522; Wolven v. Traction Co., 143 Mo. App. 643; Heller v. C. & A. Railroad, 209 S. W. 567; Schroeder v. C. & A. Ry. Co., 108 Mo. 322; Wolff v. Campbell, 110 Mo. 114; Kenney v. Railroad Co., 79 Mo. App. 204, 207; Craig v. United Rys. Co., 175 Mo. App. 616, 626; Bates v. Harvey, 195 S. W. 571.]
“The other cases cited by defendants are clearly not in point.
“There is no merit in defendant’s contention that plaintiff’s wife was guilty of contributory negligence as a matter of law. [Cleveland, Cincinnati, Chi. & St. L. Railway v. Hadley, 170 Ind. 204; Wood v. Ry. Co., 96 N. Y. Supp. 419; Larson v. Elev. Ry. Co., 98 N. E. 1048; Gloldweber v. Railway, 173 N. Y. Supp. 470.]
“The Supreme Court adds the following case to the cases cited: Lafferty v. Kansas City Casualty Co., 229 S. W. 750.
“ Prom what we have said it follows that plaintiff’s Instruction No. P-2 should have been given and the court properly sustained the motion for a new trial.
“The judgment is affirmed. All concur.”

Ill adopting the opinion of the Kansas City Conrt of Appeals as the opinion of this court, we wish -to add that if the door of the car that injured the plaintiff’s wife’s hand had the catch at the bottom thereof, and was in perfect working order, as the defendants’ evidence tended to show, then'the inference must be drawn that the car was being negligently run and operated without the door being fastened by the catch, for had it been it would have been a physical impossibility for it to have slammed and caught the plaintiff’s wife’s fingers.

For the reason stated the judgment of the eir cuit court is affirmed.

All concur; Graves J., in separate opinion, in which Woodson, P. Jconcurs.

GRAVES, J.

(concurring). — I think the Court of Appeals opinion is correct in holding that a new trial might have been properly granted upon the failure to give plaintiff’s' Instruction No. 2, which presented *her case upon the res ipsa loquitur doctrine. In other words, I agree to the opinion of that court. As the car was standing and not moving at the time of the accident, I do not concur in the remarks added at the end of the opinion. I therefore concur in so far as our opinion adopts the opinion of the Court of Appeals.

The last remarks of my brother might lead to the view that the car was running at the time of the accident, whilst as a fact a number of passengers had left the compartment (the car being at a stand-still) before plaintiff’s wife reached the door, and some few were following her. Up to the time she reached the door the fastening' seems to have performed its function, but as .she passed through the opening of the door, for some reason, not explained, the door closed, and caught her fingers. It is suggested that the following passengers may have pushed the door, but of this there is a question. 1 concur as aforesaid.

Woodson, P. J., concurs in these views also.


author: WHITE, G. WALKER, J.

text:
    GEORGE RIGLEY v. EDWARD B. PRYOR et al., Receivers of WABASH RAILROAD COMPANY, Appellants.
    Division Two,
    October 6, 1921.
    1. NEGLIGENCE: Change of Testimony on Second Trial. A plaintiff who on a former trial was induced by the skillful cross-examination of defendant’s attorney to make statements contrary to the facts should not be nonsuited for telling the truth about the matter at the second trial. Where the usual duties of plaintiff were to walk the track, but when not so engaged he assisted the section men in repairing the track, and he was injured while on a handcar* going with a section crew to work upon the track, he ought not to be nonsuited because on the former trial he testified in answer #to leading questions by defendant’s counsel that he was a track-walker, especially where he also testified on direct examination that it was a part of his duty to be on the hand-car at the time he was injured, although the Court of Appeals, on appeal, held that the evidence showed he was a track-walker, and being such he could not recover because it was his duty to look out for the train which struck the hand-car.
    2. -: Collision With Hand-car: Fog: Sufficient Evidence. The morning was very foggy, and the six section men on the hand-car could see only twenty of thirty feet ahead; they had proceeded a mile or so when a train, coming from the opposite direction, ran upon the hand-car, knocked it off the track, killed five of the men and injured plaintiff; it was necessary for section men to pass along the track in foggy weather on a hand-car, and such cars were to be expected by the trainmen; it was the usual practice for trains passing through such fogs to sound the bell continuously, blow the whistle frequently and run ten or twelve miles an hour; the train was run at a speed of twenty-five miles; plaintiff testified that he and the crew were listening and looking for trains, and that he could hear the whistle a half mile when it was sounded and had heard it that distance; that he did not hear either the whistle or the bell; the engineer, fireman, conductor and brakemen testified that the bell was rung continuously and the whistle sounded at intervals, but none of them was definite as to just when or how often the whistle was sounded, and the engineer testified that as near as he could recall' he sounded the whistle twice in running a mile and a quarter, but there was no positive evidence that it was sounded within a half mile of the collision, and plaintiff’s testimony was positive that it was not sounded within that distance. Held, that a demurrer to the evidence could not properly have been sustained, and the question of defendant’s negligence was one for the jury to decide.
    3. - — :-: —-: Not Hearing Whistle or Bell: Negative Testimony. Where the morning was foggy, hand-cars on the track were to be expected, it tvas the usual practice of trainmen at such times to run the train slowly and continuously ring the bell and sound the whistle at frequent intervals, and six men on the handcar were directly and intensely interested in hearing the whistle and bell, their lives depending on their hearing, the testimony of one of them that he could have heard the whistle a half mile and that he listened and did not hear either the bell or whistle is not ordinary negative evidence, like that of an inattentive witness who is not interested in noticing whether a certain signal is given, but is positive evidence that the bell was not rung or the whistle sounded, and its truth is for the jury to decide.
    4. -: -: -: Excessive Speed: Proximate Cause. Where the morning was very foggy, hand-cars on the track were to be expected men on the hand-car could see only twenty or thirty feet ahead, it was the usual practice of trainmen at such times to run the train ten or twelve miles an hour and to continuously ring the bell and sound the whistle at frequent intervals and there is positive testimony that neither was done, the train was being run at a speed of twenty-five miles an hour, and it is inferable from the facts that if the train had been run at the customary speed the hand-car would have reached its destination and been off the track before the train arrived, the inference that the excessive speed was the proximate cause of the collision is justified by the facts; and it is pure assumption that a train running at half the speed would have caused the same injury, for if the train had been running at half the speed the men on the hand-car would have had double time to jump for their lives,' and the force of the collision would necessarily have been less.
    5. -: Frequent Bell and Whistle: Instruction. An instruction telling the jury that it was defendant’s duty “frequently and at short intervals to sound the bell and whistle,” and which also told them that the whistle should have been sounded “as a warning of the approach of said train to those on said hand-car,” was not erroneous for failure to define the word “frequently.”
    6. -: Damages: Contributory Negligence: Assumption of Fact. An instruction on the measure of damages which does not authorize a verdict on any finding whatever, hut simply calls the attention of the jury to the defense of contributory negligence and tells them what is necessary to prove in order to defeat a recovery on that ground, cannot be twisted into an assumption that defendant was negligent or into an elimination of the idea that plaintiff’s negligence could have been the sole cause of his injury.
    7. EVIDENCE: Opinion on Former Appeal. The opinion of the Court of Appeals on the former appeal, reversing the judgment and remanding the case for a new trial, is pure hearsay, and not competent evidence on any theory.-
    8. INSTRUCTION: Measure of Damages: Loss of Earning Power:Present Cash Value. A loss of earnings is a totally different thing from loss of oarning power; and an instruction which tells the jury that they may award as damages “the present cash value of such sum” as they shall find and believe from the evidence will fairly and reasonably compensate plaintiff for his past and future physical and mental pain, his medical expense, and “his pecuniary loss resulting directly from any impairment of his earning power,” does not authorize them to estimate his loss of earnings at the timo of the accident by the present standard of earnings when wages are much higher, but directs them to base their estimate upon his present disability, whether permanent or curable; and if the instruction is somewhat vague in directing the jury how to make the estimate for present and future suffering, defendant cannot complain unless it offers an instruction on the subject.
    9. EXCESSIVE VERDICT: $12,500: Compelled Remittitur. . The plaintiff, fifty-three years of age, traveling with a section crew on a hand-car, when it was struck by defendant’s train was thrown down an' embankment and lodged against a tree; the physician who examined him found a hernia in the region of the stomach and also an inguinal hernia and a lump on the-right side of the spine near the kidney; there was blood in his urine, and he was treated for several months; at the time of the trial, five years later, he was nearly cured, and no visible evidence of the inguinal hernia, but some difference of “impulse” was observed on the right side; owing to disuse /of the muscles on the left side they had become somewhat atrophied and weak, and there was a nervous condition, made manifest by a profuse unnatural perspiration; it is difficult to believe the injuries are permanent, although painful; he was not allowed to recover anything for loss of earnings, and the pain and suffering he endured and will endure and the impairment of his earning power were all that the jury considered, except his medical expense of $200, He,Id, that a verdict for $12,500 was excessive, and • a remittitur of five thousand is required as a condition of affirmance.

      Held, by WalkeR, J., dissenting, that the custom arbitrarily exercised by appellate courts in reducing the amount of verdicts is to be deprecated, and if a verdict is out of all proportion as a compensation for the injury inflicted, ample opportunity is afforded for an intelligent reduction in the, trial court, and if this is not done the appellate court should hesitate to interfere, unless the amount of the verdict is glaringly excessive, in which event the judgment should be reversed and the cause remanded for a new trial.
    Appeal from Jackson Circuit Court. — Hon. Harris Robinson, Judge.
    ApfiRMtsd (on condition).

      N. S. Brown, Homer Hall and Sebree & Sebree for appellants.
    (1) The court committed error in refusing-to give the instruction in the nature of a demurrer, asked by defendants, at the close of the evidence, (a) Plaintiff, without reasonable explanation or excuse, changed the testimony which he gave at a former trial, which testimony did not make a case. Rigley v. Pryor, 204 S. W. 737; Faith v. Home Ins. Co., 208 S. W.' 124; Steel v. Kansas City Southern, 265' Mo. 97; Smith v. Boston Elevated Ry., 184 Fed. 387; Moses v. Klusmeyer, 194 Mo, App. 634-640; Adams v. New York City Ry. Co., 109 N. Y. S. 1019-1022. (b) No negligence was proved against defendants. First, on the failure to ring the hell and blow the whistle. Rigley v. Pryor, 204 S. W. 737; Woods v. Railway, 187 S. W. 11; Armstrong v. D. & R. Gf. Railway, 190 S. W. 944; McNeil v. Railway, 182 S. W. 481, •489; Sanders v. Ry. Co., 147 Mo. 424. Second, on'the speed of the train. Third, on the action of Anderson. Woods v. Railway,"Í87 S. W. 111. (c) Plaintiff assumed the risk. Pryor v. Williams, 41 IRS. C. Rep. 36. (2) The action of the court in giving" plaintiff’s instructions was erroneous, (a) Instruction- A. (b) Instruction B. Smith v. K. C. S. Ry. Co., 279 Mo. 191'; Burns v. Penn.’ Railroad, 239 Pa. 207; Chesapeake & Ohio Railroad v. Kelly, 241 U. S. 485; Goodhart v. Railroad, 177 Pa. 1; Reitler v. Penn. Railroad, 238 Pa. 1. (d) Instruction D. Hamheide v. Transit Co., 104 Mo. App. 323, 333. (3) The court erred in excluding from the evidence the opinion of the Kansas City Court of Appeals in the, former trial of this case. (4) The verdict is excessive. Dryez v. Hammond Packing- Co., 194 S. W. 761; U. P. Railroad v. Sheeley, 221 Fed. 910; Laughlin v. Railroad, 205 S. W. 3.
    Atwood, Wichersham, Hill & Popham for respondent.
    (1) By the overwhelming weight of the evidence it is shown that Rigley was on duty in the line of his employment at the time of receiving his injury; that defendants habitually ran their trains and hand-cars in the same or opposite directions during foggy weather; that the only means in use by defendants for the protection of section men operating hand-cars moving through the fog and on curves where the section men’s view was obstructed was for the trainmen using the track to blow the whistle and sound the bell at such frequent intervals as would warn employees on hand-cars of the approach of a train in time to enable them to remove themselves and their hand-car from the track to a place of safety. The failure of defendants’ trainmen to so sound the whistle and ring the bell was a direct and proximate cause of the collision and death of Anderson, and such facts being shown, plaintiff was entitled to recover. Honea v. Railroad 245 Mo. 621, 637; Boyd v. Railroad, 249 Mo. 110, 128; Schroeder v. C. & A. R. Co., 108 Mo. 322; Boyd v. Railroad, 236 Mo. 54, 80; Smith v. Railroad, 1913A, A. & E. Anno. Cases, p. 434; Hard-wick v. Railroad, 181 Mo. App. 156; Greenwell v. Railroad, 224 S. W. 404, 1. c. 407; Lancaster v. A., T. & SF., 143 Mo. App. 163; Nelson v. Railroad, 148 Pac. 388, 50 Mont. 516; M. O. & G. Railroad v. Dersberry, 167 S. W. 881; Saunders v. Railroad, 83 S. E. 573; Ry. Co. v. McGraw, 207 S. W. 559; Williams v. Railroad, 204 S. W. 292,181 Ky. 313; L. & N. Railroad v. Mullins, 203 S. W. 1058, 181 Ky. 148; Bennett v. A. T. & S. Fe Railroad, 174 N. W. 798; O’Brien v. Erie Ry. Co., 123 N. Y. Supp. 1040; Gulf y. Brooks, 132 S. W. 95; Hofford v. Railroad, 110 N. W. 446, 16 L. R. A. (N. S.) 797; L. &• N. Ry. Co. y. Smith, 205 Fed. 360; Norfolk & W. Railroad v. Earnest, 229 XT. S. 114, 57 L. Ed. 1097; Grow v. Railroad, 47 Utali, 26, 150 Pac. 970; see also Erie Railroad v. Punecker, 244 U. S. 320-322, 61 L. Ed. 1166-1167. (2) Appellants’ point No. 1, that there was no evidence of failure to ring the hell or blow the whistle, is without merit, because by the positive testimony of George Rigley, the only surviving member of the section crew, he and the rest of the section crew, including Anderson, the foreman, were listening for the warning signals, and heard none. The car was being rtyi slowly, sis or eight miles per hour, a little bit faster than, a man walks. At other times when similarly situated, and about the identical place of the collision in question, Rigley and other section men testified they had heard warning signals given in the customary way, and had removed themselves and car from the track to a place of safety. The jury found that defendants did fail.to give the warning signals and that the collision was caused by such failure, and this justified a finding for plaintiff. Kirkland v. Bixby, 222 S? W. 462; Hardwick v. "Wab. Railroad, 181 Mo. App. 156. (b) The testimony of the failure of the engine men to run slow and to. frequently - sound the warning signals, was not merely negative, but was positive, and clearly made a jury issue. Jones Commentaries on Evidence, sec. 898, p. 399; Stotler v. Railroad, 200 Mo. 107, 137; Miller v. Harvey, 204 S. W. 926. (3) Plaintiff’s instructions were correct, (a) Norfolk & W. Railroad v. Earnest, 229 U. S. 114, 57 L. Ed. 1097; Greenwell v. C. M. & St. P., 224 S. W. 409; Vicksburg Ry. Co. v. Putnam, 118 U. S. 545, 30 L. Ed. 257; L. R. A. 1917F, p. 373. (b) Washington & Railroad Co. v. La Four, 48 App. D. C. 364. Defendants asked no instruction on measure of damages, and hence arc in no position to complain of plaintiff’s instruction on this issue. Powell v. Railroad, 255 Mo. 420, 456; Waddell v. Met. St. By., 213 Mo. 8. (4) Plaintiff had the right to rely upon the assurances of safety of Foreman Anderson. "What information about the trains Anderson received in the station was wholly unknown to Rig’ley, and it was not his duty to inquire or find out what information had been given. Under such circumstances, plaintiff had the right to rely upon the assurances of safety from his superior. Hayes v. Ice Go., 221 a. W. 705; Boten v. Sheffield Ice Co., 180 Mo. App. 96, .101; Burkhead v. Rope Co., 217 Mo. 466, 471; Sullivan v. Railroad, 107 Mo. 67, 78; Swearingen v. Mining Co., 212 Mo. 524; Hall v. Coal Co., 260 Mo. 351, 367. (5) The verdict of the jury was not excessive. Hurst v. Railroad, 219 S. W. 567; Greenwell v. Railroad, 224 S. W. 405; Hulse v/'Railroad, 214 S. W. 156; Dunton v. Hines, 267 Fed. 452.
   WHITE, G.

An action for personal injuries. The plaintiff recovered judgment in the Circuit Court of Jackson County, November 21, 1919, for the sum of $12,500. The plaintiff was in the employ of the defendant, and lived north of the Missouri River about seven miles east of Kansas City, at or near Randolph, in Clay County. About seven-thirty in the morning, January 19, 1914, he boarded a hand-car with a crew at Randolph and started westward to repair some track between that point and Kansas City. The crew consisted of a Mi*. Anderson, who was foreman, the plaintiff, and four other men. The plaintiff assisted in propelling the hand-car. The morning was very foggy; the men could see a distance of only about twenty or thirty feet ahead. They had proceeded a mile or more westward from Randolph and had crossed what are termed the twin bridges when a Wabash train, coming from the west in the fog, ran upon the hand-car and knocked it off, killing all the other men, and inflicting injuries upon the plaintiff, for which he brings this suit.

The plaintiff introduced evidence to sliow that it was usual for heavy fog's to hang over the track along the river at that point at that time of the year; and that it was the custom for trains passing through the fog at such times to sound the bell continuously, blow the whistle at frequent intervals and run slowly. Running slowly meant ten or twelve miles an hour. Across the river from Kansas City, and about five miles west of Randolph, is what is termed Block 223, whence signals were sent to Randolph indicating trains in the block. While the crew was waiting at Randolph a train was in the block, and they waited until it passed eastward before starling. There were two paralled tracks used by the Burlington, the Rock Island, and the Wabash Railroad companies. The trains on those tracks used the north track going west, and the south track going oast; the hand-car was on the south track when met by the train going east. Shortly before the collision a train on the north track going west passed the hand-car.

The plaintiff testified that as they proceeded he and the crew were listening for trains, and heard no bell and no whistle from the train which ran them down. He testified that he could have heard the whistle half a mile and had heard it that distance; that he was listening and was in a position to hear the bell and the whistle. Other evidence was offered by the plaintiff to show that crews on hand-cars going through the fog always listened and watched for trains that might cause them trouble.

The train was running at the rate of about twenty-five miles an hour. The defendant introduced evidence to show that the whistle was blown at intervals of about two or three minutes, and once or twice after the train had passed the Milwaukee bridge, which was about a mile and a quarter west of the place of collision, and that the bell was rung continuously.

On that evidence the jury returned a verdict, judgment was rendered as stated, and the defendant appealed. On a former trial a verdict was returned for $4500, find on appeal to the Kansas City Court of Appeals the judgment was reversed and the cause remanded.

I. The appellant asserts that the judgment should he reversed because the plaintiff changed his testimony from what it was at the first trial. On appeall from the first trial (Rigley v. Wabash Ry. Co., 204 S. W. 737), the Kansas City Court of Appeals held that the plaintiff could not recover on two grounds: First, because there was nothing to show that the plaintiff belonged to the crew of that car or why he was on it; he appeared merely to have been there with no suggestion that he was ordered there; his duties as an employee of the railroad company were those of track-walker, and therefore he was not in the line of his duty at the time of his injury. Second, he could not recover because being a track-walker it was his duty to look out for trains.

In his testimony at the last trial the plaintiff said he had been at work for the company for twelve or fourteen years; on the morning of the injury he was engaged at track work — was working on that section repairing the track; that his business consisted of walking the track, but on the morning of the injury he was working as track repairer — a section man; that a track-walker walks the tracks, and he never walks the track on a hand car; he had worked on that particular section for six or seven years, and besides being track-walker he did section work; section work consisted in going out on the track with a gang, laying rails, or doing’ anything to keep the track up. He further testified that on the morning of the injury he with the crew was going to repair the track near the Milwaukee bridge, and he knew beforehand what was to be done there. The evidence showed that before starting from Randolph the foreman went into the station and talked to the station agent, and that it was customary for the foreman in such case to ascertain about the trains. The plaintiff himself was not permitted to testify as to any orders given him by the foreman, because the foreman was dead at the time of* the trial. It was shown by the two sons of the plaintiff who testified, and who were not present at the former trial because they were with the A. E. F. in France, that plaintiff’s work consisted of going over the track and working on the track and going out on a hand-car for that purpose, and that he put in a part of his time as a section man. One witness for the plaintiff said he was present in Randolph in the morning and saw the hand-car when it started; he knew Mr. Anderson, the foreman; he-saw the crew put the car on the track and get on the car, and heard Mr. Anderson instruct Rigley to get on. He saw them putting the tools on the car, he heard Anderson say, “Come on boys, let’s go, everything is clear, everything will be safe,” and they all got on the car, including Rigley, and moved off. This evidence, and it is uncontradicted, sufficiently, shows that the plaintiff was in the line of his duty that morning and that he was not working as a track-walker.

The point made by appellant is that the plaintiff changed his testimony from the first trial where he testified that he was a track-walker. On cross-examination at the first trial Rigley, in answer to leading questions of defendant’s counsel, testified that his business was to walk along the track and see that the track was in good condition, and that was all he did; that he walked up and down the track and lookéd at the rails and bolts and everything, to see that» it was in repair and if it was not in répair he reported it to someone else, it was not his duty to repair it.

In re-direct examination the plaintiff showed he had also testified on the former trial that it was a part of his duty to go down on that hand-car that morning and that he was on duty at that time.

It is claimed that his present testimony so changes what he swore then that he ought not to recover.

This court has held that if a plaintiff on a second trial, without a reasonable explanation, changes his testimony from that given at the first trial as to facts material to Ms right of action, he ought not to be credited with telling the truth, and ordinarily should suffer non-suit. [Steele v. Railroad, 265 Mo. l. c. 110-111.] In this ease the statement of the plaintiff, where he said he was a track-walker and that was all he did, and that he reported repair work to someone else, were all in answer to leading, questions asked by defendant’s counsel. He answered simply, “Yes, sir” and, “No, sir” to the questions asked. He said at the same time that it was his duty to go out on a hand-car that morning.

The evidence at the present trial sufficiently shows that while he was a track-walker he had the additional duty to assist in repairing the track; that he did section work also as a part of his regular work. This was shown by witnesses other than the plaintiff. No attempt was made by defendant to show that it was not true, and defendant must have known whether plaintiff’s duties included section work or not. The question at issue was whether he was in the line of his duty at the time he was injured. The evidence showed without contradiction that lie was.

If on the former trial the plaintiff was induced by the skillful cross-examination of defendant’s attorney to make statements contrary to the facts, he should not bo nonsuited for telling the truth about the matter now.

II. Appellant claims the demurrer should have been sustained because there was no proof of actionable negligence on the part of the defendant. The evidence showed without contradiction that there was a heavy fog the'morning of the accident, and that such fogs were of frequent occurrence along the river at that point; that it was necessary for section men to pass along the track in foggy weather in a hand-car and that hand-cars Avere to be expected upon the track; that it was the custom for trains running through such fogs to run slowly, ten or twelve miles an hour, sound a whistle at frequent intervals, and ring the bell continuously. The defendant objected to the word “custom,” but all of defendant’s witnesses testified that it was the uniform “practice” to blow the whistle and sound the bell at such times. One of plaintiff’s witnesses said it was the custom to blow the whistle at such times every fifty or seventy-five yards.

The appellant now says there is no substantial evidence to show negligence, in failing to observe the custom or practice. It is also argued that the noise of the handcar would prevent to some extent those on it from hearing the bell or whistle, and that the train which passed on the other track immediately before the collision probably made such a noise as to drown the sound of the bell and whistle. The plaintiff testified that he could hear the whistle half a mile when it sounded. He said he and the crew were propelling the hand-car and’ listening and looking for trains. lie did not hear either the whistle or the bell. Appellant introduced witnesses, including the engineer, fireman, conductor and brakeman, to testify that the whistle was sounded and the bell rung. Some of them testified that the bell was rung continuously and that the whistle was sounded at intervals. None of them were very definite as to just when or how often the whistle was sounded. The engineer said he sounded the whistle at intervals of two or three minutes. He was running twenty-five miles an hour. As nearly as he could “recall” he sounded the whistle twice after he crossed the Milwaukee bridge, which was a mile and a quarter from the place of collision. There is no positive evidence on the part of the defendant that the whistle was sounded at all within a half mile of the place of collision. The testimony of the plaintiff is positive that it was not sounded. This is not ordinary negative evidence, such as given by an inattentive witness rvho is not interested in noticing whether a certain signal is given, — such testimony as is frequently given in railroad cases where a bystander testifies he didn’t hear a whistle, or a boil. [Dutcher v. Railroad, 241 Mo. l. c. 169.] Here were six men on a hand-car, every one of them directly and intensely interested in hearing any whistle or bell that might be sounded; their lives depended upon their hearing; they were listening for the purpose of hearing. That none of them heard is a reasonable inference, because, if any one of them had heard the whistle or the bell the others would have been notified and the hand-car removed from the track. Upon this evidence it was a question for the jury, whether the defendant was negligent in failing to sound the whistle with sufficient frequency to warn the parties on a hand-car, or any employee who might be in a dangerous position on the track.

Another act of negligence alleged was the excessive speed. The appellant claims the speed of twenty-five miles an hour was not the proximate cause of the collision, because it is not shown thatf it could have been avoided if the train had been running at a lower rate of speed. It is pure assumption to say that a train running at half the speed would have caused the same injury, or one like it. If the train had been running at half the speed from the time it crossed the river, the handcar would have been to its destination and off the track. If not, the men on the hand-car would have had double the time in which to jump for their lives after they saw the train appearing in the fog; the force of the collision, if there had been one, would necessarily have been much less. It was a question for the jury as to whether an excessive rate of speed was the cause of the injury.

It is possible that the noise of the hand-car and the confusion of sounds caused by the train which had' just passed may have prevented those on the hand-car from hearing the bell, or, if they heard it, from locating its direction; but all that was for the jury to consider in determining whether proper care was exercised.

III. The appellant assigns error^ to the giving of Instruction A, the principal instruction given on behalf of the plaintiff, which told the jury it was the defendant "to frequently and at short intervals to sound the bell and whistle on said train.”

The objection is that the instruction did'not define the word “frequently” nor tell the jury what was meant by it. The instruction did tell the jury that the whistle should he sounded “as a warning of the approach of said train to those on said hand-car.” It is apparent that the whistle should be sounded frequently enough to serve that purpose. It was for the jury to say whether or not that was done. If the instruction had told the jury that frequently meant every hundred yards,, or every quarter of a mile, or anything of that kind, defendant’s counsel would have been urging more valid objection to the instruction.

IV. In an instruction on the measure of damages the jury were told that if they found the plaintiff failed to exercise ordinary care for his own safety, then the damages, if any were awarded, should be diminished accordingly. Then a further instruction, D, given for the plaintiff, defined contributory negligence as a failure on the part of the plaintiff to exercise ordinary care, any negligent act or omission of plaintiff which concurred with the negligence, if any, of defendants, in causing the injury, and then continued: “You are further instructed, however, that if yóu 'should find from the evidence that plaintiff was guilty of contributory negligence, yet the Act of Congress under which this suit is brought, provides and you are instructed, that contributory negligence, unless the sole cause of the injury, does not defeat a recovery altogether, but the damages, if any awarded, shall be diminished by the jury in the proportion which the contributory negligence, if any, of plaintiff bears to the combined negligence, if any, of‘both plaintiff and defendants, and your finding shall be in accordance herewith. ’ ’

The appellant asserts that the use of the words “contributory negligence” assumes that appellants were negligent and eliminates at once the idea that plaintiff’s negligence could be the sole cause of the accident. The jury bud been told in the. other instructions that they must find the defendant was guilty of negligence in several particulars in order to authorize a verdict for the plaintiff. It is attributing to the jury an unusual subtlety to suppose they would apply such refinement of reasoning to the interpretation of the word “contributory.” This instruction is based solely on the defense of contributory negligence. It does not authorize a verdict on any finding whatever. It simply calls atiene ion to that defense and tells the jury what is necessary to prove in order to defeat recovery on that ground. It does not affect or purport to affect the main issues of the case as put to the jury in the other instruction and is not erroneous.

V. The defendant offered in evidence the opinion of the Kansas City Court of Appeals, as the same is reported, rendered when the case was before that court-on appeal from the former trml. In that: opinion the Court of Appeals m its analysis of the facts finds that the plaintiff was a track-walker and was not in the discharge of his duty at the time he was injured. Appellant has offered no authority nor any reason why this evidence suould be admitted. It is not only pure hearsay, hut a conclusion from the facts and not competent evidence m any theory.

YU. The appellant' complains of the instruction given for plaintiff on the measure of damages. Thin instruction, after telling the jury they siren Id take inlo account the nature of the injuries, bodily pain and mental anguish, if any, suffered by the plaintiff, and such as the jury she aid find the plaintiff has suffered and would s after in the future, his medical expenses, not exceeding $200, “impairment of his ability, if any, to work and earn money resulting directly from such injuries,” then directed them to award plaintiff, “the present cash value of such sum in damages as the jury shall find and believe from the evidence will fairly and reasonably compensate him for Ills mental and physical pain, if any, bis medical expense, if any, and bis pecuniary loss, if any, resulting directly from any impairment, if any, of bis earning power, all as above restricted and set out, and resulting directly from sucli injuries, if any, so received.”

Tbe objection to that instruction is tbe use of tbe expression ‘ ‘ present cash value. ’ ’ Appellants argue that it allows tbe jury to estimate plaintiff’s loss of earnings in 1914 by the present standard of earnings when -wages are much higher. An analysis of tbe instruction shows that tbe award of damages authorized were on account of (a) physical and mental pain, past and future; (b) medical expenses; (c) impairment of earning power. Tbe jury wore not authorized to give plaintiff damages for loss of “earnings/’ a totally different tiling from loss of earning power.

In awarding damages for impairment of ability to earn money, tbe jury necessarily must base tlioir estimate upon tbe present disability, whether it is permanent or curable. They must estimate tbe probable duration of it, just as in a death claim they estimate the expectancy of life of the person killed, and the pecuniary loss to the widow or children. They must give a lump sum as their mpasure of the present value of the loss. [8 R. C. L. p. 479; Morton v. S. W. Tel. & Tel. Co., 280 Mo. 360, 217 S. W. 835; Hurlburt v. Bush, 224 S. W. l. c. 327; McWhirt v. C. & A. R. R. Co., 187 S. W. 830, l. c. 836.] It was the rule applied by this court in the case of Greenwell v. C. M. & St. P. Ry. Co., 224 S. W. 404, l. c. 410. The loss of earning power was estimated and compensation allowed, at the present value of such compensation.

'Should a different rule be applied in estimating compensation for pain and suffering, when it is continuing If the suffering were wholly in the past it might be well to direct the jury to consider only compensation reasonable at the time the suffering was incurred. But when the estimate must include suffering past, present and future, covering a long period of time before the trial— five years in this case — what is the jury to do? Estimate the cash value of the compensation in 1914, and subsequent years separately? Or divide the time in monthly periods and figure out the pain and suffering of each month? Instructions indicating the present value of the compensation for suffering have been held proper. [Reynolds v. Transit Co., 189 Mo. 420.] Such sum as “will reasonably compensate him” was held correct in Dean v. Railroad, 199 Mo. l. c. 393. “Such sum as you find will be reasonable compensation to her for mental and physical pain and suffering” (past and future) was approved as the proper measure in Krinard v. Westerman, 279 Mo. 680, 216 S. W. l. c. 942. “Will reasonably compensate” and “will he reasonable” cannot mean anything else than measured by present cash value.

If the instruction is somewhat vague in directing how to make the estimate, the appellant cannot complain because it offered no instruction on the subject. [Hurlburt v. Bush, 224 S. W. l. c. 327; Powell v. Railroad, 255 Mo. l. c. 454; Breen v. United Rys. Co., 204 S. W. l. c. 523.]

VII. It is claimed that the verdict is excessive. The evidence shows the plaintiff was fifty-three years old at the time of the trial. He was not allowed to recover anything for loss of earnings. The pain and suffering which he incurred and the impairment of earning capacity was all that could he considered by the jury, except his medical expenses of $200. The evidence showed that he was thrown down an embankment and lodged against a tree. The physician who examined him found a hernia in the region of the stomach and also an inguinal hernia and a discolored lump on the right side of the spine in the region of the kidney. There was blood in the plaintiff’s urine after-wards. He was treated for several months. At the time of the trial he was nearly cured; there was no evidence visible of the inguinal hernia. The physician, however, stated that he had observed some difference in “impluse,” on that side from the other side. Owing to the disnse of muscles on the left side they had become atrophied somewhat. There was a weakness in the muscles of that side. The physician also noticed a tendency to break out in a profuse unnatural perspiration. He attributed that to a nervous condition. Physicians for the defendant testified that they found nothing wrong with the plaintiff at the time of the trial. It is difficult to believe that liis injuries were permanent, although they were painful. The only thing that remained at the time of the trial was some discomfort and a certain weakness of partially atrophied muscles on the left side, making it difficult for him to lift things. Considering the elements of damage which the jury were allowed to take into account, and the nature of the injuries, we think the verdict was excessive to the amount of five thousand dollars. If the plaintiff will, therefore, within ten days from the delivery of this opinion remit from the amount of h.s judgment five thousand dollars as of the date of the ju igment, the judgment will be affirmed; otherwise, it will be reversed and remanded.

Bailey, C., not sitting; Mosley, G., concurs.

PER CURIAM: — The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur, except Wother, J., who concurs in opnion filed.

WALKER, J.

(concurring). — I concur in this opinion, except as to the affirmance conditional upon the entry of a remittihw in the amount of the verdict. [ deprecate the custom arbitrarily, as I construe it, exercised by appellate courts, in reducing the amount of verdicts. The triers of the fact are much better qualified to pass fairly upon this question than a judge sitting smugly in his chambers with nothing to direct his judgment or -influence his conclusion, except the cold record. If chis verdict shocked the moral sense, in that it was out of all proportion as a compensation for the injuries infr fled, ample opportunity was afforded for ail intelligent reduction of same in the trial court. This not having been done, we should hesitate to interfere, unless the amount of the verdict is glaringly excessive, in which event the case should be reversed and remanded for a new trial.


author: JAMES T. BLAIR, C. J.

text:
    THE STATE ex rel. HATTIE ROLL et al. v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    October 8, 1921.
    1. DEED BY ENTIRETIES: Divorce: Purchase Price Advanced by Husband. Where the husband’s money paid for the land and the deed named him and his wife as grantees, thereby creating an estate by the entireties, and subsequently they are divorced, thereby changing the estate into one in common, the husband, in a subsequent partition, is not entitled to the amount advanced by him, and the Court of Appeals in so deciding and in holding that only the balance, after deducting the money advanced, may be divided between them, contravened the decision in Bender v. Bender, 281 Mo. 473, since it was there decided that a resulting trust must arise, if at all, at the instant the deed is taken, and cannot be created by subsequent occurrences.
    2. -:-: Effect on Property Rights. Divorce does not restore the parties to their former condition in all respects; it vests the wife with her moiety, and it changes.an estate by the entireties into a tenancy in common, but it does not raise a resulting trust in favor of the husband who paid the money for a deed to her and him ::s the grantees, and no such resulting trust arises in his favor unless the trust arose at the time the deed was taken.

      Certiorari.

    Record quashed.

      Pope, & Lohman for petitioners.
    (1) The opinion of the Court of Appeals is directly in conflict with a long line of decisions of this court, which decide that where a husband purchases land with his own means and takes title, either in the name of his wife, or in the name of himself and wife, then it is presumed that the interest which the wife’thus took in the land was intended as a provision for her, and there is no resulting trust in his favor for the money he paid for the land. Wilhite v. Wilhite, 224 S. W. 448, 450; Bender v. Bender, 220 S. W. 929; Moss v. Axdrey, 260 Mo. 595, 611; Yiers v. Viers, 175 Mo. 453; Curd v. Brown, 148 Mo. 92; Aeby v. Aeby, 192 S. W. 97; Joerger v. Joerger, 193 Mo. 133; 39 Cyc. 136; Ilgenfritz v. Ilgenfritz, 116 Mo. 429; Gilliland v. Gilliland, 96 Mo. 522; Funk v. Punk, 223 S. W. 780. (2) “A resulting trust must arise, if at all, at the instant the deed is taken.' Unless the transaction is such that the moment the title passes the trust' results from the transaction itself, then no trust results. It cannot be created by subsequent occurrences.” Bender v. Bender, 220 S. W. 929, 930; Stevenson v. Hayes, 220 Mo. 206; Kelly v. Johnson, 28 Mo. 249; Richardson v. Champion, 143 Mo. 544; Barrett v. Foote, 187 S. W. 69; 1 Perry on Trusts, sec. 133'; 39 Cyc. 106. (3) “Upon the destruction of the marital relation by the divorce decree, plaintiff and her former husband became tenants in common. Russell v. Russell, 122 Mo. 235; Joerger v. Joerger, 193 Mo. 133. Respondent concedes this, but contends that though the parties became tenants in common, their respective interests as such tenants, must in equity be determined by the amount originally paid by each on account of the purchase price. This view cannot be sustained. Since the defendant purchased the land and took the title so to create an estate by the entirety, the presumption is that the interest which the wife thus took in the land was intended as a provision for her. Siling v. Hendrickson, 193 Mo. 365. And. there is nothing present tending to rebut or repeal such presumption. As an executed gift, by way of provision for his wife, ,the husband was without power to deprive the wife of her interest in the land. And after divorce plaintiff’s interest in the land, as a tenant in common with her former husband, was equal to that of the latter.” Punk v. Punk, 223 S. W. 781.

      Irwin & Haley for respondents.
    (1) Husband and wife take and hold an estate by the entirety, not as separate'individuals and by moieties, but as one person, each holding the whole of it. They are neither joint tenants nor tenants in common-; but for the purpose of holding the title, they are a unit, and upon the death of either, the entire estate belongs to the survivor. Brewing Co. v. Saxy, 273 Mo. 159. (2) However, a divorce of the husband and wife destroys an estate by the entirety theretofore existing between them; and, if in the decree the legal interest of the defendant is not awarded to the plaintiff, they are thereafter tenants in common, and partition can be had between such tenants in common with the same facility and results as between other like tenants. Russell v. Russell, 122 Mo. 235. .(3) When an estate by the entirety is, by divorce, transmuted into one of tenancy in common, as in the case at bar, and partition is sought, the party advancing the purchase money is entitled to the amount advanced, and the balance may be divided between the respective parties. Joerger v. Joerger, 193 Mo. 133; Aeby v. Aeby, 192 S. W. 97. (4) The opinion of the Nansas Oxty Court of Appeals does not, to any degree, conflict witn any of the decisions of the Supreme Court cited .by relators. The cases cited by relators are cases announcing üie principle that “when a husband purchases real property with his own funds and causes it to be conveyed to his wife, it is presumed prima-facie that he intended the conveyance as a provision for her, and a trust will not result.” Bender v. Bender, 220 S. W. 929. '
   JAMES T. BLAIR, C. J.

The writ brings into this court the record of the Kansas City Court of Appeals in the case of Francis Elliott v. Hattie Roll, 226 S. W. 590. Prom the opinion in that case it appears that the facts are that Francis Elliott and Nancy S. Elliott were husband and wife; that during the marriage Francis Elliott bought and paid for a tract of land and caused the deed to be made to himself and Nancy S., his wife; that subsequently, Nancy S. procured a divorce from Francis; they had no children. Soon after the decree of divorce was rendered Francis brought suit against his former wife to partition the land. She died, and these relators, her children by a former marriage, were made defendants. The parties agreed that the land should go to sale and the proceeds be divided according to the rights of the parties in the land. The trial court adjudged that Francis Elliott was entitled to a sum equal to the purchase price ($950) he had paid and one half the balance. The remainder, $60.53, was adjudged to belong to defendants.

The Court of Appeals held: (1) that when Elliott bought and paid for the land and caused the deed therefor to be made to himself and his wife the two became tenants by entireties; (2) that there was a presumption that Elliott intended a provision for his wife; (3) that if there had been no divorce she would have held her interest as tenant by the entirety “wholly free from any claim by him in advancement of purchase money;” (4) that the divorce “cut out survivorship and changed the estate into one in common, and after the decree, they held it as tenants in common;” and (5) that “when the estate becomes one in common and partition is sought, the party advancing the purchase money is entitled to the amount advanced, and the balance may be divided between them as was done by the circuit court.” The judgment was affirmed.

This last proposition is said to be in conflict with decisions of this court. There is no question that upon the purchase and execution' of the deed to them Nancy and Francis Elliott became tenants by entireties. The purchase was made by the husband with his means and the presumption is that he took the deed as he did as a provision for his wife. There is no evidence to rebut this presumption. In ease lie had died before the dissolution of the marriage the wife would have taken the whole, by her right of survivorship. The divorce dissolved the marriage and the tenancy by entireties was thereby converted into a tenancy in common. A right to partition thereupon arose. [Russell v. Russell, 122 Mo. 235. The rights of Mrs. Elliott came from the deed her husband caused to be executed to her and to himself, jointly. No trust resulted at the time the deed was. delivered. The husband could not, on facts like those stated by the Court of Appeals, have had a trust declared in his favor during the marriage. [Wilhite v. Wilhite, 284 Mo. 387, 224 S. W. 448, and cases cited; Haguewood v. Britain, 273 Mo. l. c. 92, 93.] Tn Bender v. Bender, 281 Mo. 473, 220 S. W. 929, the'husband had bought land and caused it to be conveyed to himself and wife. The wife subsequently procured a divorce. The husband then sued and pleaded that he had purchased the land with his own means and caused it to be conveyed to himself and wife upon an agreement that in case of a separation in the future he and his wife would convey the property to their children. The court held lhat no trust resulted from the fact that the'money of the husband paid for the property; that a resulting trust must arise, if at all, at the instant the deed is taken and cannot be created by subsequent occurrences. This holding is in point in this case. The facts of'that case,, in so far as their efficacy to raise a resulting trust is concerned, are like those in this case. This court held no such trust was raised. The Court of Appeals, in this case held,- in effect, the contrary. Thereby it brought the opinion into conflict with the decision in Bender v. Bender. The holding in the Bender case is in accord with the decisions in other states. [Reed v. Reed, 109 Md. 690; Hayes v. Horton, 46 Ore. 597.] Divorce does not restore the parties to their former condition in all respects. “It vests in the wife her moiety.” [Holmes v. Kansas City, 209 Mo. l. c. 527.] It does not treat the marriage as a nullity. The law takes the parties where it finds them at tlie time of the divorce (2 Bishop on Marriage & Divorce, sec. 1623), and unless a trust arises at the time the deed is taken or there be statutes which affect the case, an est'ate by entireties becomes a tenancy in common and the husband’s right to cut’ down the moiety of the wife is not increased or affected by the fact of divorce. The cases in which the wife has succeeded in impressing a trust upon property, though held by entireties, which her husband has bought with her money, and those in which there is fraud or the like, are not in point.

Because of the conflict pointed out the record of the Court of Appeals is quashed.

All concur.