author: BRACE, C. J.

text:
    THE STATE ex inf. HUGHES ex rel. GAULT et al., Appellants, v. GILL et al.
    In Banc,
    June 28, 1905.
    1. SCHOOL: Organization of District: Incorporated Village. It is not necessary for the organization of a village school district that the village be incorporated. The statute no longer so requires.
    2. -: -: Plat. It is not necessary in order to organize a common school district into a village school district that there be a recorded plat of the village. '
    3. -: -: Withdrawing Notice. Where proper petition was filed and legal notice given to the voters for the organization of a common school district into a village school district, the legality of the organization of the village school district by the voters who responded to the notice, elected a chairman, voted “for organization,” elected directors, etc., is in nowise affected by the fact that two of the directors after the notices had been posted met and ordered the notices withdrawn and put up other notices to that effect, and took down the prior notices. Upon the filing of the proper petition, the law imposed on the board the purely ministerial duty of ordering an election and giving notice thereof, and in the performance of that duty they were invested with no discretion, and having given it the matter passed into the hands of the voters of the district.
    Appeal from Jackson Circuit Court. — Hon. Shannon G. Douglass, Judge.
    Affirmed.

      Ward <& Hadley for appellants.

      Frank P. Sebree and Silver & Brown for respondents; E. B. Gill of counsel.
   BRACE, C. J.

Quo warranto to oust defendants from the offices of school directors of the school district of Dallas, in Jackson county, Missouri. Appeal from the Jackson County Circuit Court. Judgment helow for the respondents, and the relators appeal.

On the 13th of May, 1903, and for many years prior thereto, there was a common school district in said county, duly organized as school district No. 4, township 48, range 33, in which there resided about fifty qualified voters and in which there was an unincorporated village called Dallas, a plat of which had been duly executed and acknowledged, and recorded in the office of the recorder of deeds of said county, on the 15th of January, 1903.

By section 9861, Revised Statutes 1899, art. 2, cap. 154, it is provided, that:

“Whenever it may be desired to organize a common school district into a city, town or village school district, with special privileges granted itoder this article, the board of directors shall, upon the reception of a petition to that effect and signed by ten qualified voters who áre resident taxpayers of the district, order an election held for that purpose, and shall give notice of such election by notices posted in five public places within the district for fifteen days prior to the day of such election — said meeting to be held at 2 o ’clock p. m. at the public schoolhouse in said district, if there be one, but if there be no public schoolhouse, then at such place within the district as may be designated in the notices; and when said meeting is assembled, it shall elect a chairman and secretary, who shall keep a correct record of the proceedings of said meeting, and turn the same over to the board, properly signed and attested by the chairman, and the board shall have a copy of the same entered upon the district records; said election may be held at an annual or at a special meeting, and the order of business under this section shall be as follows:
“First. To organize, as a city, town or village school district; those voting for the organization shall have written or printed on their ballots ‘For organization,’ and those voting against the organization shall have written or printed on their ballots ‘Against organization;’ and each person desiring- to vote shall advance to the front of the chairman and deposit his ballot in a box to be used for that purpose. When all present shall have voted the chairman shall appoint two tellers, who shall call each ballot aloud, and the secretary shall, keep a tally and report to the chairman, who shall announce the result; and if a majority of the votes cast are Mor organization,’ the chairman shall call the next order of business.
“Second. To elect six directors, as follows: two shall be elected for three years, two for two years and two for one year, and each director shall be elected separately, and the result announced in the manner prescribed for organization. If said election is held at a special meeting, from then until the next annual meeting shall be taken as one year, so far as relates to the terms of the directors elected. The directors chosen must comply with the requirements of section 9864.”

On the 13th of May, 1903, J. W. Gault, Johnson Young and O. M. Schock constituted the board of directors of said district and at a board meeting held on that day at the sehoolhouse in said district, at which all of them were present, there was presented to and received by said board a petition signed by fifteen qualified voters and resident taxpayers of said district, as follows :

“To the School Board of District No. 4, Township 48, Range 33, in Jackson county, Missouri.
“We, the undersigned qualified voters and resident taxpayers of said district, desire to organize said school district into a village school district with special privileges granted under article 2 of the school laws of said State, respectfully petition you to order an election held in said district for that purpose in manner and form as provided by law. ’ ’

Thereupon it was ordered by said board that an election be held at the sehoolhouse in said district on the 29th of May, 1903, for the purpose of voting on the proposition to organize said school district into a village school district, to be known as the Dallas School District, and thereupon they caused notices thereof on that day to be duly posted as required by the statute aforesaid. Afterwards on the 23d of May, 1903, the said Gault and Young, two of said directors, met and ordered that the notices aforesaid for the election aforesaid of May 29, 1903, be withdrawn and that notices should be put up to that effect, which was accordingly so done and several of the prior notices taken down. On the 29th of May, 1903, twenty-six of the qualified voters and resident taxpayers of said district, in pursuance of the notices first aforesaid, assembled at the schoolhouse in said district, organized and held an election on the proposition aforesaid in the manner required by the statute aforesaid, at which twenty-six votes were cast “For organization” and none against it. Whereupon the respondents in accordance with the requirements of said statute were duly elected directors of said district and within four days thereafter, as required by section 9864 of said article, to-wit, on the first day of June, 1903, duly qualified as such, and organized as the board of directors of said district, and since have claimed the right to exercise the functions of the board of directors of the school district of Dallas within the county of Jackson, as alleged in the information. Afterwards on the 26th of June, 1903, this proceeding was instituted on the information of the prosecuting attorney of said Jackson county, at the relation of J. W. Gault and Johnson Young, in which ouster of the respondents is sought, on the ground that common School District No. 4, Township 48, Range 33; in Jackson county, was not by the proceedings aforesaid legally organized into a village school district with the special privileges granted under article 2, chapter 154, Revised Statutes 1899:

First, because the village of Dallas was not incorporated; second, because the plat of said village was only a partial one and included less than a moiety thereof; and, third, because the order of May 13th for the election held on May 29th was rescinded by the order of May 23rd. The argument in support of the first two of these grounds is based exclusively upon section 9860 of said article, by which it is provided, that:

“Any city, town or village, the plat of which has been previously filed in the recorder’s office of the county in which the same is situated, may, together with the territory which is or may be attached thereto, be organized into a single school district, and, when so organized, shall be a body corporate,” etc.

' The terms of that section of the article apply as well to unincorporated villages as to those that are incorporated, and the history of the section shows that such was the intention of the Legislature; for, while the word “incorporated” preceded the word “city” in the section as originally adopted (R. S. 1865, p. 274, sec. 1), that section as it then read was expressly repealed by an act “Approved March 21, 1870” and a new section enacted in lieu thereof, in which the word “incorporated” was eliminated (Laws 1870, p. 127), and ever since the section has read as it does now, and from that date until the year 1889 that section was the only one providing for the organization of territory into a district to be governed by the provisions of article 2. But by an act approved June 11, 1889 (Laws 1889, p. 249), a new section was enacted, carried into the revision of 1889 as section 8084 and into the revision of 1899 as section 9861, as hereinbefore set out. And since 1889 we have had in the statute provision made, by section 9860 of article 2, for the organization of ‘ ‘ any village, the plat of which has been previously filed in the recorder’s office and the territory which is or may be attached thereto” into a single school district; and by section 9861 of article 2, provision made for the organization of “any common school district” into a village school district. Thus we have two separate and distinct organizations provided for — the result the same in each — a single school district governed by the provisions of article 2. To the first is essential a village ; and a recorded plat thereof; that the territory to be organized may be defined. To the second, only an organized common school district whose territory is already defined and which needs no plat for that purpose. The proceeding in question was not to organize the village of Dallas with the territory which is or may be attached thereto into a single school district as provided for in section 9860, but to organize common school district No. 4, Township 48, Range 33 into a village' school district with the special privileges granted under article 2 as provided for in section 9861 of that article; and, in strict accordance with the provisions of which, the village school district of Dallas was organized and the respondents duly elected directors thereof. To such an organization a recorded plat of the village of Dallas was not essential, nor the village itself for that matter, as distinguished from any other part of the district. As a village it could cut no figure in the organization of the new district under section 9861, except to give it a name. The fact that Dallas was not an incorporated village and that the recorded plat thereof may may have been a defective one, in no way affected the validity of the organization in question.

Nor do we think the validity of that organization was at all affected or impaired by the action of Grault and Young on the 13th of May, in ordering the notice of the election to he withdrawn and causing other notices to that effect to be posted. Upon receiving the petition of the fifteen qualified voters and taxpayers of the district, the law imposed upon the board of directors the purely ministerial duty of ordering an election and giving notice thereof in the manner prescribed by the statute; in the performance of which duty they were invested with no discretion, and when they had performed that duty they became functus officio in the matter, which then passed into the hands of the qualified voters of the district, and it was for them and not for the directors, or any number of them to determine how it was to he disposed of.

We find nothing in the able and ingenious argument of counsel for relators to lead us for a moment to doubt the correctness of the conclusion of the court below, and its judgment will he affirmed.

All concur, except Burgess, J., absent.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    McHUGH v. ST. LOUIS TRANSIT COMPANY, Appellant.
    In Banc,
    June 28, 1905.
    1. NEGLIGENCE: Pleading: Common Law Action: Violation of Ordinance: One Count. An action for damages for common law negligence cannot be joined in the same count with one for statutory negligence. An action for negligence based on common law negligence in starting a street car forward with a jerk just as plaintiff, a female passenger, was in the act of alighting therefrom in obedience to a call from the conductor of the point of her destination, is one cause of action, and an averment of a violation of a city ordinance prohibiting conductors from allowing ladies or children to leave cars while in motion and asking for damages for injuries resulting from a violation of said ordinance, is another cause of action; and the two causes should not be combined in one count of the petition, and if that is. done, and the point properly raised at the trial-by motion to elect, etc., a judgment for plaintiff will be reversed. As the accident resulted from the same transaction, the two causes could well be joined in the same petition, but in separate counts, with a prayer for judgment at the end of each count.
    2. -; Evidence: Statements By Plaintiff. A witness testified that plaintiff “would bring her hand up to her side, and say that her side hurt, her, and that she had such pains in the hollow of her neck and the back of her head.” Held, that the representations, having been made by plaintiff prior to the institution of the suit, were receivable as original evidence.

      3. -: Ordinances: Unreasonable. The city ordinances provided: “Conductors shall not allow ladies or children to leave or enter cars while the same are in motion.” Held, that the ordinance is not unreasonable and void as imposing upon the carrier the duty of controlling the acts and liberty of passengers, nor does it impose an unreasonable duty upon carriers toward those under their care and whom they undertake to carry safely.
    4. -: -: Civil Liability. It is not error to permit such ordinance in evidence on the ground that its violation by the carrier creates a civil liability against it in favor of the passenger. Such ordinance, being in the nature of a policeP regulation for the safety of pass'engers upon street cars, was within the power and authority of the city, under its charter,' to pass.
    5. -: Care: Error in Favor of Appellant. Where the instruction in one part exacts of the carrier “a Very high degree of care” and lower down “ordinary care,” the error in the use of the latter words was in the carrier’s favor, hence, one of which he cannot complain.
    6. -: Alighting From Car: Duty of Conductor. It is not error to tell the jury that it was the duty of the conductor, in addition to warning a young woman not to step from the car while it was in motion, to “exercise reasonable care to prevent her from alighting therefrom.”
    Appeal from St. Louis County Circuit Court.— Hon. John W. McElhinney, Judge.
    Reversed and remanded.

      Boyle, Priest & Lehmann and Geo. W. Easley for appellant.
    (1) The court erred in. overruling the several motions to elect filed by appellant. The petition being in a single count, contains two distinct causes of action. Post v. Campan, 42 Mich. 96. The primary right of the plaintiff alleged to have been neglected by the defendant was the right to have-her car stop at her point of destination, and there held for a reasonable time to enable her to alight; the neglect of defendant to award her that primary right constituted the delicti, which, when followed by injury, constituted a full and compíete cause of action. The primary right, alleged in the second part of the petition, was the right to have the conductor disallow her to leave the car while in motion. If the ordinance he valid and the injury followed the neglect of the duty sought to be imposed thereby, that is another complete and distinct cause of action. The second allegation claims a right to have the conductor allow or permit her to leave the car while in motion. That right, if it exists at all, was created solely by the ordinance. It did not arise from the common law. To allege in the same count, which asks but one remedy, two distinct duties not arising from the same source of power, and the neglect of each of them, must, in the very nature of things, state two distinct causes of action. Pomeroy’s Remedies, secs. 452-462; Warwick v. Hutchinson, 45 N. J. L. 65; Foote v. Edwards, 13 Blatchf. 310; Sumner v. Rogers, 90 Mo. 329; Kendrick V: Railroad, 81 Mo. 521; Harris v. Railroad, 51 Mo. App. 128; Linnville' v. Harrison, 30 Mo. 228; Jamison, v. Copher, 35 Mo. 351; Ederlin v. Judge, 36 Mo. 483; Southworth Co. v. Lamb, 82 Mo. 242; Bartley v. Trorlicht, 49 Mo. App. 216; Supperly v. Railroad, 9 How. Pr. 83; 1 Burn’s Anno. Code, sec. 413. “If it be true that the petition discloses two causes of action which should have been separately stated, the remedy in such cases is by motion.” Childs v. Railroad, 117 Mo>. 437; Kern v. Pfaff, 44 Mo. App. 32; Lidel v. Fisher, 48 Mo. App. 454; Mooney v. Kennett, 19 Mo. 551; Otis v. Bank, 35 Mo. 128; Crystal v. Craig, 80 Mo. 367. (2) The court erred in admitting the ordinance in evidence: 1. Because the same is unreasonable and void. It imposes upon the carrier the duty of controlling the acts of passengers, when the passenger is at liberty to act as he pleases. Fortune v. Railroad, 10 Mo. App. 256; Murray v. Railroad, 176 Mo. 183; Hutchinson v. Railroad, 161 Mo. 253. 2. The ordinance requires the conductor to assault the lady, if necessary, to prevent her from getting off the moving car. 3. An ordinance that merely prescribes a penalty for its violations, does not create a liability in favor of a private individual. The only liability which attaches to its infraction is the penalty. Hartford v. Talcott, 48 Conn. 425; Keokuk v. Dist. of Keokuk, 53 la. 352; Kirby v. Market Co., 14 Gray 249; Flynn v. Canton Co., 40 Mo. 312. The city has no authority to create any other liability than the penalty it is authorized to impose. Van Dyke v. Cincinnati, 1 Disney 532; Moran v. Car Co., 134 Mo. 631. 4. The inhibition of the ordinance is so broad, when construed in the light of the ordinary duties of a street car conductor, as to make it unreasonable and void. Take a car with an entrance at each end; how can the conductor guard both? In such a case the conductor cannot be charged with such duty. Gebhart v. Railroad, 97 Mo. App. 383.

      A. B. Taylor for respondent.
    How can there be two causes of action made out of one injury? The injury is the essence of the cause of action, without which any number of negligent acts would fail to make a cause of action. Thus, in this case, if the defendant’s servants negligently started the car whilst the plaintiff was getting off, but injury did not result, manifestly there would be no cause of action; and so, if the conductor violated the ordinance in allowing the plaintiff to get off while the car was in motion, but no. injury ensued, there would be no cause of action. Our Code requires that the petition shall state the substantive facts constituting the cause of action concisely and without unnecessary repetition. R. S. 1899, sec. 592. This means that the petition should contain averments of all substantive facts relied on for a recovery. Hill v. Railroad, 49 Mo. App. 534; Bradley v. Railroad, 94 Mich. 38.
   BURGESS, J.

This is an action for damages alleged to have been sustained by the plaintiff, resulting from injuries received in an accident which occurred' at the intersection of Delmar and Euclid avenues, in the city of S.t. Louis, on the 1st day of April, 1901, by reason of one of the cars of the defendant, in which plaintiff was a passenger, being started forward with a jerk just as plaintiff was in the act of alighting therefrom.

The petition alleges that as such car approached said Euclid and Delmar avenues, defendant’s conductor in charge of said car called out Euclid avenue, and said car was stopped at or near said crossing, plaintiff’s destination, and plaintiff thereupon, at said invitation, proceeded to alight from said ear whilst the same was so stopped, and whilst she was in the act of alighting, and before she had reasonable time or opportunity to do so, defendant’s servants in/charge of said car carelessly and negligently caused and suffered said: car to be started, whereby the plaintiff faas thrown from said car and sustained great and permanent injuries upon her body and legs, and also great and permanent internal injuries, sustaining an injury to her knee and to her side, causing a compression to her side and chest, and injury to her lungs and causing her to have pleurisy, and also injuring her head and causing a great and permanent injury to her nervous system. And the plaintiff avers that at the time of her said injury there was in force in the city of St. Louis an ordinance of said city by which it was provided that conductors of street cars should not allow women or children to enter or leave the car whilst the same was in motion, yet the plaintiff avers that defendant’s conductor in charge of said car, in violation of said ordinance, caused said car to start in motion whilst plaintiff was leaving it, and allowed the plaintiff to leave said car whilst the same was in motion, which violation of said ordinance directly contributed to cause plaintiff’s said injuries.

The answer was a general denial, and a plea of contributory negligence on the part of plaintiff in attempting to alight from a moving car, one hundred and fifty feet east of the eastern line of Euclid avenue.

The plaintiff’s evidence tended to show that she was at the time of the accident about twenty-five years of age, and receiving fourteen dollars per month for her services as housewoman; that on the day of the accident to her she boarded defendant’s west-bound car at Pendleton and Finney avenues, about eight o’clock in the evening, and that her destination was Euclid avenue, or 4900 Delmar avenue; that on the same car with her there were five other passengers, four in the front part and one in the rear part of the car; that when the conductor called for plaintiff’s fare she requested him to let her off at 4900 west, or Euclid avenue; that when the car reached said avenue or number it stopped and the conductor from the platform spoke to plaintiff, saying, '‘this is 4900,” and told her to get off, whereupon the plaintiff arose in her seat and went towards and upon the rear platform of the car and took one step, when the car was moved forward with a jerk which threw her to the ground and caused the injuries complained of; that after being thrown from the car plaintiff was taken to St. Joseph Hospital, where she remained ten days under the treatment of physicians then in the service of the St. Louis Transit Company; that upon leaving the hospital she returned to Mrs. Dunn’s where she had been employed at the time of the injury, and was thereafter under the treatment of Dr. Grant. Plaintiff stated in her testimony that she was injured on the back of her head and on her side and that her knees and arms were bruised; that she was rendered unconscious by the fall and did not regain consciousness until after she reached the hospital; that after the accident and up to the time of the trial she had a pain in her side and had been subject to fainting spells and had pains in her head constantly; that she was unable to discharge her duties as servant to Mrs. Dunn until May following her injury. Plaintiff proved that she paid thirty dollars for medical services.

Mrs. Dunn, witness for plaintiff, stated that before the injury plaintiff’s health was good, but that when she returned after the injury she would complain of her side hurting her and of pains in the back of her neck and head; that she would have fainting spells and at those times would fall forward on the floor, dropping anything she might have, in her hands; that these spells at first occurred once or twice a week, and sometimes would be ten days apart and then several weeks or a few months apart, and then come very close together again.

Plaintiff read in evidence article 6, entitled, “Of Street Cars,” and subdivision 5 of section 1246, of the Revised Ordinances of the city of St. Louis, as follows: “Conductors shall not allow ladies or children to leave or enter the cars while the same are in motion. ’ ’

Adolphus Brown,' witness for the defendant, testified that he was the conductor in charge of the ear at the time plaintiff claims she was injured. He testified in substance that there were at the time of the accident only three passengers on the car, the plaintiff, a Miss Walsh, and another lady whose name he did not mention; that plaintiff asked him to let her off at Euclid avenue, and that as the car passed Bayard avenue he called out, “Euclid avenue, 4900;” that plaintiff came back in a rush and stepped on the platform and down on the first step; that he then grabbed hold of her, saying: “Hold on, lady; don’t jump off until it stops;”' that as he said this she jumped off backwards; that the point at which she jumped off backwards was 150 feet east of. Euclid avenue, and that at the time the car was moving at a speed of about fifteen miles an hour; that after the plaintiff jumped and fell he got off immediately and ran to her assistance, and that plaintiff was then taken to the doctor’s office. He stated that after the other passengers got off to help plaintiff, the car did not stop, but continued on for eight blocks west; that he grabbed the plaintiff with both hands and pulled her shawl off her. This statement was contradicted by the plaintiff who stated that she did not have a shawl on, but a jacket which was buttoned.

Miss Walsh’s testimony tended to corroborate the testimony of the conductor.

Plaintiff recovered judgment for the sum of $3,300, from which judgment, after unsuccessful motions for new trial and in arrest, defendant appeals.

This appeal was granted and the appeal perfected prior to the announcement of the decision of the Court in Banc in the case of Gabbert v. B-ailroad, 171 Mo. 84, and the point as to the adoption of the amendment providing for a verdict by less than twelve jurors was brought into question by instructions and the motion for new trial.

At the opening of plaintiff’s case, and again at the close of all the evidence, defendant moved the court to require plaintiff to elect upon which cause of action alleged in the petition she would proceed to trial.

Defendant insists that the petition contains two separate and distinct causes of action, and that the court erred in overruling said motions. The argument is that the first cause of action is for the negligent acts of the conductor in calling out, “Euclid avenue,” stopping the car at the plaintiff’s destination, and while she at his invitation was proceeding to alight therefrom, while the car was standing, and before she had reasonable time or opportunity to do so, the car was negligently caused and suffered to be started, whereby the plaintiff was thrown and injured; while the other cause of action is for the negligent act of the conductor in allowing the plaintiff to leave the car while the same was in motion, in violation of an ordinance, which violation directly contributed to plaintiff’s injury.

That the petition states two causes of action is, we think, clear; the first, an action at common law for negligence; the other an action for damages alleged to have been sustained by plaintiff by reason of the alleged negligence of defendant’s conductor in charge of the car in which plaintiff was a passenger, in permitting her to leave said car whilst the same was in motion, in violation of the ordinances of the city of St. Louis. They are independent of each other, and upon either an action might be maintained, but they cannot, under the rules of good pleading, be embraced in the same count. If embraced in the same petition they should be in separate counts, with a prayer for judgment at the conclusion of each count. When separate causes of action are united in the same petition, each must be distinctly and separately stated, with the relief sought to each cause of action in such manner that they may be intelligently distinguished. [R. S. 1899, sec. 593; Childs v. Bank of Missouri, 17.Mo. 213; Mooney v. Kennett, 19 Mo. 551; Doan v. Holly, 25 Mo. 357; Marsh v. Richards, 29 Mo. 99; St. Louis Gras Light Co. v. St. Louis, 86 Mo. 495; Christal v. Craig, 80 Mo. 367; Henderson v. Dickey, 50 Mo. 161; Kendrick v. Railroad, 81 Mo. 521; Linville v. Harrison, 30 Mo. 228; Jamison v. Copher, 35 Mo. 483; Ederlin v. Judge, 36 Mo. 351; Southworth Co. v. Lamb, 82 Mo. 242.]

While there was but one injury and there could be but one recovery for it, and any number of negligent acts preceding the injury and leading up to and contributing to it might properly be set forth in the same count of the petition, if of the same character, an action for damages at common law for negligence cannot be joined in the same count with one for statutory negligence, for the very obvious reason that they could have no possible connection with, or in any way be dependent upon, each, other. [Kendrick v. Railroad, 81 Mo. 521.; Harris v. Railroad, 51 Mo. App. 125.]

Hill v. Railroad, 49 Mo. App. 520, and same case in 121 Mo. 477, relied upon by plaintiff, does not announce a contrary rule. Upon the other hand, the acts of negligence preceding the injury in that case were all of the same character and naturally led up to and contributed to the accident, while in the case at bar they were independent of and had no connection with each other. Each cause of action was founded on a different right, and each right separate from the other, because not derived from the same source or in the same manner. As the accident resulted from the same transaction, the causes of action could well be joined in the same petition, but in separate counts, with a prayer for judgment at the conclusion of each count.

The court, at the instance of plaintiff, instructed the jury upon both causes of action, and authorized a recovery upon proof of either negligence or of a violation of the ordinance, and thus recognized the petition as stating two different causes of action. In case a petition improperly joins two different causes of action in the same count, it has always been ruled by this court that the remedy is by timely motion to require the plaintiff to elect upon which count he will proceed to trial, as was done in this case. [Mooney v. Kennett, 19 Mo. 551; Otis v. Mechanics’ Bank, 35 Mo. 128; Kern v. Pfaff, 44 Mo. App. 32; Liddell v. Fisher, 48 Mo. App. 454; Christal v. Craig, 80 Mo. 367; Childs v. Railroad, 117 Mo. 414.]

The case in hand is clearly distinguishable from Bartley v. Trorlicht, 49 Mo. App. 216, and that class of cases, where a number of defects in machinery, all existing at the time of the injury, might co-operate with each other in producing it; and under such circumstances, it would be proper to unite them, because the ultimate effect of all the defects produced the injury, and because capable of and likely to co-operate with each other in the result.

The motions should have been sustained.

Mrs. Dunn, a witness for plaintiff, was permitted to testify, over objection offered by defendant, that plaintiff “would bring her hand up to her side and say that her side hurt her; and that she had such pains in the hollow of her neck and the back of her head. ’ ’ This evidence was clearly with reference to plaintiff’s expressions of pain felt at the time, and not made after the institution of suit, as claimed by defendant. It therefore falls within the rule announced by Mr. Green-leaf in his work on Evidence, as follows: “So, also, the representation by a sick person of the nature, symptoms, and effects of the malady under which he is laboring at the time, are received as original evidence. If made to a medical attendant, they are of greater weight as evidence; but if made to any other person, they are not on that account rejected.” [1 Greenleaf on Evidence (Lewis Ed.), sec. 102.]

It is next claimed that the demurrer which was interposed to plaintiff’s evidence should have been sustained, but we are unable to concur in this contention. The evidence, although conflicting, was, we think, sufficient to entitle plaintiff to have her case go to the jury.

It is also contended that the third instruction given for plaintiff should have been refused because there was no evidence upon which to base it, but this contention is, we think, untenable.

Another contention is that the court erred in admitting the ordinance in'evidence, upon the ground that it is unreasonable and void in that it imposes upon the carrier the duty of controlling the acts of passengers, when the passenger is at liberty to act as he pleases. This same ordinance was before the St. Louis Court of Appeals in the case of Fortune v. Railroad, 10 Mo. App. 252, and it was then upheld upon the ground that it was for the safety of passengers travelling upon railways and steam cars within the city limits. That ease was cited with approval in the more recent case of Fath v. Railroad, 39 Mo. App. 447. The ordinance is not unreasonable or void, nor does it impose upon public carriers of passengers an unreasonable duty toward those under their care and whom they undertake to carry safely.

Another objection urged against this ordinance is that it creates a new duty upon the part of carriers of passengers, and that the violation of that duty is negligence, and such negligence causing injury creates liability. This same question has been before this court on a number of occasions, and, while the decisions upon it are not uniform, in the recent case of Sluder v. St. Louis Transit Company, 189 Mo. 107, in ah able and exhaustive opinion by Gantt, J., in which all the authorities are reviewed, it is held that such ordinances, being in the nature of police regulations for the safety of passengers upon street cars, were within the power and authority of the city to pass under its charter. This decision was by the Court in Banc, and must be considered as finally settling the question now under consideration.

Instruction numbered four given on behalf of plaintiff is complained of upon the ground that it is contradictory in its terms, in that it requires in one part that the persons in charge of said car should “use a very high degree of care, ’ ’ and in another, of the conductor, “ordinary care,” thus allowing plaintiff to leave the said car whilst it was in motion, and must have been confusing to the jury. yVe are unable to agree in this contention, as it seems to us to be without merit, for if the law required of those in charge of the car the exercise of a “very high degree of care,” which seems to be conceded by defendant, and the instruction only required of the conductor ordinary care, we are unable to perceive how the jury could have been misled, or the rights of the defendant prejudiced thereby. If the first proposition be correct, then it was an error in favor of the defendant to require of the conductor only ordinary care, and of which defendant cannot complain. Certainly the judgment should not be reversed on that ground.

Another insistence is that the court erred in refusing the first instruction asked by the defendant, and in giving instruction numbered one of its own motion. The only difference in these two instructions is that in defendant’s instruction the jury was told that if plaintiff stepped from said car while in motion, and that the conductor of said car warned her not to step from it before she alighted therefrom, she could not recover, while the instruction given by the court of its own motion told the jury that if the conductor, in addition to warning plaintiff not to step from said ear before she alighted therefrom/‘exercised reasonable care to prevent her from alighting therefrom ,” she could not recover and the verdict must be for defendant.

In a word, the instruction given by the court of its own motion only required of the conductor the exercise of reasonable care to prevent plaintiff from alighting from the car while in motion, which was nothing more than his duty anyway, for it is common knowledge that it is dangerous for passengers to step from cars upon which they are traveling when such cars are in motion. No conductor who is regardful of his duties toward his passengers would neglect to exercise ordinary care to prevent injury to them while getting off or on the car of which he has control. There was, therefore, no error in refusing the one instruction and giving the other.

A point is made with respect to the amount of the verdict, which is claimed to be excessive, but as the case must be reversed and the cause remanded, it seems unnecessary to pass upon that question.

For these intimations the judgment is reversed and the canse remanded.

Brace, G. J., Gantt and Fox, JJ., concur; Marshall, VaTliant and Lamm, JJ., concur in the result.


author: VALLIANT, J.

text:
    HOLMES et ux., Appellants, v. MISSOURI PACIFIC RAILWAY COMPANY.
    In Banc,
    June 28, 1905.
    1. NEGLIGENCE: Running Towards Track: Concurring Negligence: Child. Running on, or in dangerous proximity to, a railroad track, without looking or without heeding, is an act of negligence; and although the engineer saw the pedestrian running towards the track, in sufficient time to have slowed up or stopped the train or to have sounded the whistle, and did neither, the contributory negligence of the pedestrian is sufficient to bar his recovery, if he is a person of sufficient maturity to be chargeable with contributory negligence. But, although the engineer, as a general rule, when he sees a person running towards the track may presume that the pedestrian will use his eyes and see a rapidly approaching train and stop and let it pass, yet if he could see from the size of the person approaching that it was a child too young to exercise that discretion, he has no right to act on that presumption, and the company is liable for the resulting injuries.
    2. -: -: Contributory Negligence: Child. If reasonable men might reach different conclusions from the given facts the question of whether a child, who ran upon a railroad track in front of an approaching train was of sufficient maturity to be held accountable for his negligent conduct, is one for the jury; otherwise, it is one for the court. Or, otherwise stated, if it was so manifest that the child was of an age and attainments sufficient to understand and appreciate the consequences of his imprudence that there could be no two honest and reasonable opinions about it, the court should not submit the question to the jury; otherwise, the question of his accountability is for the jury, for then the question arises, can such a child be guilty of contributory negligence? And in this case, where the child killed was eight years old, it is held that the trial court should have submitted the question of his accountability to the jury.

      Appeal from Johnson Circuit Court. — Ho». Wm: L. Jarrott, Judge.
    Reversed and remanded.
    O. L. Houts and. Chas. E. Morrow for appellants.
    (1) The failure to give the statutory signals at the street crossing entitled plaintiffs to recover, unless their child was guilty of contributory negligence. Hanlon v. Railroad, 104 Mo. 381; Lloyd v. Railroad, 128 Mo. 595; Lamb v. Railroad, 147 Mo. 171; Sehmett v. Railroad, 160 Mo. 43; Reed v. Railroad, 80 S. W. 921. (2) The deceased was a child only eight yeárs old, and was only required to exercise such care, as would be expected of one of its age and capacity. Spillane v. Railroad, 135 Mo. 414; Ruschenberg v. Railroad, 161 Mo. 70; Campbell v. Railroad, 175 Mo. 174; Anderson v. Railroad, 81 Mo. App. 116; Heinzle v. Railroad, 81 S. W. 848. The question whether deceased, a child of immature years, only eight years of age, was guilty of' contributory negligence was one of fact for the jury, and the court erred in not submitting it to them. Ruschenberg v. Railroad, 161 Mo. 70; Campbell v. Railroad, 175 Mo. 184; Baird v. Railroad, 146 Mo. 265; Burger v. Railroad, 112 Mo. 238; Anderson v. Railroad, 81 Mo. App. 116; Heinzle v. Railroad, 81 S. W. 848. (3) Although the deceased was guilty of negligence, and failed to use such care as one of his age and capacity should use, yet defendant’s agents and servants in charge of the train, saw, or by the exercise of ordinary care might have seen, the peril he was about to put himself in, in time, by the exercise of ordinary care, to have given the usual danger signals, and put the train under control, and avoided injuring him, and the case should have been submitted to the jury on this theory. Jett v. Railroad, 178 Mo. 664; Kelly v, Railroad, 75 Mo. 595; Meeker v. Railroad, 178 Mo. 173; Klockenbrink v. Railroad, 172 Mo. 678; Morgan, v. Railroad, 159 Mo. 262; Lloyd v. Railroad, 128 Mo. 595; Schlereth. v. Railroad, 115 Mo. 87; Kellny v. Railroad, 101 Mo. 67; Hinzeman v. Railroad, 81 S. W. 1134; Livingston v. Railroad, 170 Mo. 452; Baird v. Railroad, 146 Mo. 265; Banyan v. Railroad, 127 Mo. 12.

      B. T. Bailey and Martin L. Glardy for respondent.
    (1) The court, in view of deceased’s experience, in view of his schooling, in view of the warnings which he had received, held that deceased saw the train, because the physical facts and testimony disclosed that he was*bound to have seen it under the circumstances detailed in evidence. The failure, therefore, to give the signals, or any of them, was not the proximate cause of the injury, and as the physical facts disclose the foregoing to be true, the court did right, under the law, in directing a verdict for defendant. Kelsay v. Railroad, 129 Mo. 374; Lane v. Railroad, 132 Mo. 27; Payne v. Railroad, 136 Mo. 583; Hook v. Railroad, 162 Mo. 580; Weltmer v. Bishop, 171 Mo. 116; Haviland v. Railroad, 172 Mo. 115; Southworth v. Southworth, 173 Mo. 74; G-uyer v. Railroad, 174 Mo. 351. (2) If a minor, by virtue of his education, his experience, and the warnings which he has received, is capable, while exercising such care and caution as ordinarily prudent children would exercise under such circumstances, of knowing and appreciating the dangers which he is liable to encounter by pursuing the line of conduct in which he is then indulging, then his minority is no protection. Ostertag v. Railroad, 64 Mo. 424; Spillane v. Railroad, 135 Mo. 426; Payne v. Railroad, 136 Mo. 562; Graney v. Railroad, 157 Mo. 679; Schmitt v. Railroad, 160 Mo. 58; Wendell v. Railroad, 91 N. Y. 420; Tucker v. Railroad, 124 N. T. 308; Thompson v. Railroad, 145 N. T. 200; Motel v. Trans. Co., 2 How. N. S. (N. T.) 30; Railroad v. Murry, 62 111. 326; Henderson v. Railroad, 74 N. W. 525; Trudell v. Railroad, 85 N. W. 250; Givens v. Railroad, 72 S. W. 321; Hayes v. Norcross, 39 N. E. 282; Beach on Con. Neg. (2 Ed.), sec. 117, p. 150; 3 Elliott on Railroads, sec. 1172; Murray v. Railroad, 93 N. C. 92. (3) In appellant’s brief it is claimed that even if deceased had been guilty of contributory negligence, yet if defendant’s servants in charge of the train saw or might have seen his peril in time to have given the usual signals, and put the train under control, and thereby avoided his injury, then the case should have been submitted to the jury on this theory. In our opinion this contention is wholly without merit, and absolutely untenable for several reasons: 1. If the deceased, were guilty of contributory negligence, then this was a complete defense, unless thereafter the servants -of defendant were guilty of either wanton, willful or reckless conduct, and deceased was guilty of no such conduct. Moore v. Railroad, 176 Mo. 543; Holwerson v. Railroad, 157 Mo. 216 ; Davies v. Railroad, 159 Mo. 9. In the case at bar, there was no evidence offered either showing or tending to show that the engineer or fireman ever saw deceased at all, much less in peril. He was not on the tracks, but gave two or three jumps and lit into the locomotive after it had crossed Warren street and was partially over the sidewalk. There was not even a scintilla of evidence tending to show wanton, willful or reckless conduct upon the part of the engineer or fireman. The court below, therefore, properly sustained our demurrer to the evidence, as deceased was guilty of contributory negligence. Ries v. Railroad, 179 Mo. 7; Guyer v. Railroad, 174 Mo. 351; Van Bach v. Railroad, 171 Mo. 338; Hook v. Railroad, 162 Mo. 569; Peterson v. Railroad, 156 Mo. 552; Culbertson v. Railroad, 140 Mo. 64; Vogg v. Railroad, 138 Mo. 180; Huggart.v. Railroad, 134 Mo. 673; Watson v. Railroad, 133 Mo. 251; Lane v. Railroad, 132 Mo. 4; Kelsay v. Railroad, 129 Mo. 362; Hayden v. Railroad, 124 Mo. 573; Boyd v. Railroad, 105 Mo. 371; Kellny v. Railroad, 101 Mo. 74. 2. Deceased saw the train, or, hy the exercise of ordinary care, conld have seen it, in time to have saved his own life. Even, therefore, if the engineer and fireman were guilty of negligence in failing to ring the bell or sound the whistle, yet deceased was guilty of concurring negligence and plaintiffs cannot recover. Watson v. Railroad, 133 Mo. 251; Peterson v. Railroad, 156 Mo. 552; Yan Bach v. Rail-' road, 171 Mo. 346; Moore v. Railroad, 176 Mo. 544; Schafstette v. Railroad, 175 Mo. 151; Ries v. Railroad, 179 Mo. 7.
   VALLIANT, J.

Plaintiffs are husband and wife. Their child, eight years old, was struck and killed by a locomotive engine drawing a passenger train on defendant’s road at the crossing of Warren avenue in the city of Warrensburg.

The petition charges negligence on the part of defendant’s servants in charge of the engine in this, that they failed to give a signal, by bell or whistle, of the approach of the train; that they saw or by the exercise of ordinary care would have seen the child in a position of danger in time to have avoided the accident, by the use of ordinary care, yet failed to do so.

The answer was a general denial, and three affirmative pleas, first, negligence on the part of those having charge of the boy in “permitting him to unnecessarily go over defendant’s track at the time and place- of the accident, well knowing that defendant’s train was due to pass about that time;” second, negligence of the child himself in “undertaking to cross defendant’s track while the train was in plain view and known by him to be approaching said crossing;” third, that the child knew that the train was coming and deliberately waited until it was within a short distance of him and then recklessly attempted to cross immediately in front of the engine.

Reply, general denial.

The evidence on the part of the plaintiff tended to show as follows:

Defendant’s railroad runs east and west through "Warrensburg, which is a city of the third class. Warren avenue crosses the railroad at right angle in a thickly populated part of the city. The passenger station and side track of defendant are just east of Warren avenue. The train in question, headed east, approached the Warren avenue crossing from the west, running fast; the child at the same time headed north approached the crossing from the south, running along the east sidewalk of Warren avenue. The engine and the child reached the point of crossing at the same instant, the child was struck by the cowcatcher or the pilot beam and was killed. The engine stopped 150 feet east of the crossing. The child and his brother, who was one year older, lived with their grandmother on Warren avenue south of the railroad. They went to school every day; their road to and from school was across this track; they were therefore familiar with the location. Their grandmother and their teacher had frequently warned them to be careful to look out for trains when they crossed the track. On this day the two brothers were going north along the east side of Warren avenue, starting from a point 270 feet south of the railroad. They were running — the elder in the lead — the elder got safely across, but barely escaped, while the younger was struck and killed. There was a freight train standing on a side track just east of the crossing “with steam on and puffing,” and the attention of the boys was attracted to it as they ran' along. The passenger train from the west approached the crossing at a swift speed, without giving any signal by bell or whistle;' the last signal given was at a point a quarter of a mile west of Warren avenue. The situation was such that the engineer would have seen the boys if he had looked at any time while he was traversing a distance of 500 or 700 feet before reaching the crossing, when they were from 130 to 150 feet from it, and they would have seen the locomotive, if they had looked when they and the locomotive were were within the same relative distances. There was no evidence tending to show that this child saw the train coming, hut he would have seen it if he had taken the precaution to look in that direction; he was, therefore, guilty of negligence if a child of his maturity or lack of maturity is chargeable with negligence.

At the close of the plaintiffs’ evidence the court instructed the. jury to find for the defendant; from the judgment on the verdict rendered in conformity to that instruction, the plaintiffs appeal.'

It is unnecessary to set out the testimony at more length or in more detail; what is above stated tends to show that defendant’s servants in charge of the locomotive were guilty of negligence in failing to give the signal required by law, and it points to that negligence as the proximate cause of the accident; it also tends to show that the engineer seeing the children running into peril, aiming as if to cross in front of the train, could have averted the accident by stopping the train, or at least by sounding the whistle; it also tends to show conduct on the part of the deceased child that would have justified the court in giving the instruction given, on the theory of contributory negligence, if it had been the conduct of a person of mature years. This conduct on the part of the deceased child affects the plaintiffs’ case, based as well on one of the charges of negligence specified in the petition as on the other, if it affects it at all. Running on or in dangerous proximity to the railroad track, without looking or without heeding, was an act which united with the negligence of the engineer to produce the resqlt, and although, as a general rule, the engineer when he saw a person running towards the track had a right to presume that that person would use his eyes and see the train and stop to let it pass, yet if he could see from the size of the person approaching, that it was a child too young to be counted on to exercise the required discretion he had no right to act on that presumption. The main question, therefore, in this case is, was this child of sufficient maturity to be held accountable for his imprudent act, as for contributory negligence?

A question of this hind is sometimes one of fact and sometimes one of law. If the facts are such that reasonable men cannot differ in opinion about them, it is a question of law for the court to decide, but if reasonable men might reach different conclusions on the facts, then it becomes a question which the court should submit to the jury. In this case the court took it to be a question of law and so decided it.

We have said that it is sometimes a question of fact and sometimes a question of law, and such is the form of expression frequently used by law-writers on this subject, and in a certain sense it is correct. Strictly speaking, however, the question of whether a child is old enough to be held responsible for his conduct as for contributory negligence, is always a question of fact appealing to common sense, rather than to the science of law for an answer. But when the evidence is all one way and such that there can be but one answer to the question the court should decide it without submitting it to the jury.

This case is, therefore, reduced to this question: was it so manifest that this child was of an age and attainments sufficient to understand and appreciate the consequences of his imprudence that there could be no two honest and reasonable opinions about it? If yea, the judgment was right, if nay, it was wrong:

There is little if any difference of opinion among law-writers on this subject, and not much difference in the forms of expression in stating opinions. In 7 Am. and Eng. Ency. Law (2 Ed.), 405, et seq., it is said:

‘ ‘ Thus what would be ordinary care for one person might be culpable negligence in another; and conduct wMch on the part of a person of full age and average capacity would he held contributory negligence, as a matter of law, might be ordinary care in a child of tender years. Hence it follows that children so young as to be non sui juris cannot be guilty of contributory negligence. And children who have attained an age where they are not wholly irresponsible are not required to exercise the same care and prudence that would be demanded of an adult similarly situated, but only the care of a child of equal age and ordinary childish care and prudence. And even when a child has reached years of discretion, and become, as a matter of law, responsible for his conduct, no higher degree of care will be expected of him than is usually exercised by persons of similar age, judgment, and experience. . . . And conversely, a much higher grade of care and watchfulness must be exercised to avoid injuring children than would constitute ordinary care towards an adult; that is, what is ordinary care towards an adult of full capacity may be culpable negligence towards a child. As the standard of care thus varies with 'the age, capacity and experience of the child, it Is usually, if not always, where the child is not wholly irresponsible, a question of fact for the jury whether a child exercised the ordinary care and prudence of a child similarly situated; and if such care was exercised, a recovery can be had for an injury negligently inflicted, no matter how far the care used by the child falls short of the standard which the law erects for determining what is ordinary care in a person of full age and capacity.”

Beach on Contrib. Neg. (3 Ed.), sec. 117, says: “It is a question of capacity, and it has been found a very difficult question, and has been, in many courts, a very fruitful source of controversy, as to what age is sufficient to constitute an infant sui juris. Unless the child is exceedingly young it is usually left to the jury to determine the measure of care required of the particular child in the actual circumstances of the case. Where there is no doubt as to the capacity of the child, at one extreme or the other, to avoid danger, the court will decide it as a matter of law. Thus, courts have held, as a matter of law, children of various ages from one year and five months to seven years non sui juris.” The author then goes on to discuss the subject of negligence of parents or of persons in 'loco parentis imputable to the infant, discussing Hartfield v. Roper, 21 Wend. 615, and cases that have followed it, holding that where the injury to the child is the result of the negligence of the defendant combined with that of the parents, the plaintiff cannot recover. One of the pleas of the defendant in this case is based on that theory.

1 Thompson on Neg., sec. 443, says: “The question whether, in a particular case, an injured child, not wholly irresponsible, exercises the care and caution usually looked for in other children'of like age and capacity, is generally for the jury.” Among the cases cited by that text-writer is Burger v. Railroad, 112 Mo. 238, which was the case of a boy nine years and ten months old, of whom it was said by this court: “It must be conceded that for a boy of his age plaintiff was shown to possess unusual capacity. ... It may also be conceded that the act of plaintiff,- when measured by the standard applied to an adult person of ordinary prudence, was a negligent act.’’ Judge Macfarlane, speaking in that case for the court, l. c. 249, said: “A boy may have all the knowledge of an adult respecting the dangers which will attend a particular act, but at the same time he may not have the prudence, thoughtfulness and discretion to avoid them, which are possessed by the ordinarily prudent adult person. Hence, the rule is believed to be recognized in all the courts of the country, that a child is not negligent if he exercises that degree of care which, under like circumstances, would reasonably be expected of one of his years and capacity. Whether he used such care in a particular case, is a question for the jury. [Beach on Contributory Negligence, sec. 117; Eswin v. Railroad, 96 Mo. 290; O’Flaherty v. Railroad, 45 Mo. 70; Plumley v. Birge, 124 Mass. 57; Meibus v. Dodge, 38 Wis. 300; Railroad v. Young, 81 Ga. 397.] ” That is the doctrine of this court announced in many other decisions. [Spillane v. Railroad, 135 Mo. 414; Ruschenberg v. Railroad, 161 Mo. 70; Campbell v. Railroad, 175 Mo. 161.]

If the law is correctly stated in the quotations from the above-named text-writers and in our own decisions above cited on this subject, how can we say that the court was justified in refusing to submit this question to the jury? Is it not a question on which there might be an honest difference of opinion among reasonable men?

The learned counsel for respondent refers to the fact that this child had been going four years to school (if so he must have commenced at the age of four years, for he was only eight when the accident occurred), but can the court say with certainty, as a matter of law, that in those four years he had learned prudence? It is also argued that the child’s grandmother and teacher had often warned him of the danger in crossing the railroad, therefore he was not ignorant of the danger. But as above quoted this court has said: “A boy may have all the knowledge of an adult respecting the dangers which will attend a particular act, but at the same time he may not have the prudence, thoughtfulness and discretion to avoid them.” The argument for respondent on this point might even lead some minds to the opposite conclusion to which it has led the counsel for respondent; the teacher and the grandmother had better opportunity to know the boy and know his capacity than did the trial court, yet they seem to have apprehended that he did not have sufficiently mature judgment to avoid this very danger and they showed their anxiety for his safety by warning him. If he had heeded the warning he would not have run into the danger, but do children always heed warnings? Or can we say with the certainty of law that when a child has been warned of a danger he is as to that danger like a person sui jurist One of the pleas of defendant is that the parents were negligent in allowing the child to go on the street across the track unattended. That plea looks both ways — if he was too young to be allowed to go out on the street by himself, he was not of sufficient maturity to be adjudged as a matter of law chargeable with contributory negligence —and if he was of sufficient maturity to be so adjudged, then his parents were not negligent in allowing him to go out on the street alone. It is, therefore, a proposition on which even the defendant’s pleading suggests a doubt and invites a verdict on the fact.

Another one of defendant’s arguments is that the child knew the train was coming, saw it, yet jumped right in front of it. In one of its pleas the defendant says the child saw the engine coming, purposely waited until it got close to him, and then recklessly ran in front of it. Much stress is laid on that argument in respondent ’s brief. But that also is liable to lead some minds to a conclusion the opposite to that for which it is advanced.

There is nothing to suggest a suspicion that the child wanted to commit suicjde; if, therefore, as the learned counsel think, he saw the train coming, waited until it was close and then tried to beat it over the crossing, rushing headlong and heedlessly into imminent danger, his act was very suggestive of a lack of that prudence which we would expect to be shown by a person old enough to take care of himself.

If the evidence justifies the inference that the counsel for respondent draws, we could account for the act, if it were committed by a person of mature years and good sense, only on the ground of intentional suicide, but when committed by a child it suggests only a lack of understanding of the danger or a lack of such prudence as comes only with years.

In what is above said we have not intended to express any opinion on the question of fact, hut only to show that it is a question of fact about which there may reasonably he differences of opinion, and it is a question that ought to have been submitted to the jury. The court erred in giving a peremptory instruction to find for defendant.

The judgment is reversed and the cause remanded to he retried according to the law as herein expressed.

Brace, G. J., and Gantt and Lamm, JJ., concur; Marshall and Fox, JJ., dissent; Burgess, J., not sitting.