author:
BROWN, C.
      WOODSON, J.

text:
    OTTO PRESS v. ALEXANDER PENNY and JOHN GENTLES, Appellants.
    Division One,
    March 29, 1912.
    1. EASEMENT: of Abutting Proprietor in Street. An abutting proprietor bas an easement of access in the street which is as much property as the land to which it pertains.
    2. NEGLIGENCE: Injury of Pedestrian on Sidewalk: Liability of Abutting Oyvner. The defendants, who were tenants in possession of a building abutting on a busy street, employed an independent contractor to take down a framed muslin sign tacked above the first story of defendants’ building. While drawing a nail an employee of the contractor fell from a ladder resting upon the sidewalk and injured the plaintiff, a passer-by. Held, that the work itself, performed at the time and place mentioned, was not of such kind as to render the defendants liable for injury growing out of its proper performance.
    3. -: Maintaining Dangerous Condition on Property. An owner who contracts for the creation of a condition on his property which is dangerous to third persons will be liable for injuries resulting therefrom.
    4. NEGLIGENCE: Of Independent Contractor: Injury to Pedestrian on Sidewalk: Liability of Abutting Owner. A tenant in possession of a building abutting on a street is not liable for injury to a pedestrian on the sidewalk caused by the negligence of a workman employed by an independent contractor in taking down a sign on the outside of the building..
    BOND, C., concurs in the result for the sole reason that the work was not such as is ordinarily “attended with danger,” and hence the owner incurred no liability by letting it to a competent contractor.
    WOODSON, J., concurs for two additional reasons: first, because the record shows that plaintiff’s injuries were the result of accident and not of negligence; second, because even though it be conceded that his injury was. the result of negligently pulling the nail, yet it cannot be said that the defendants or the contractors could have reasonably foreseen such result.
    Appeal from the St. Louis City Circuit Court. — Eon. C. G. Allen, Judge.
    Reversed.

      Watts, Williams & Dines, W. B. Gentry and James G. McBaine for appellants.
    (1) The finding and judgment should have been for defendants. 1st. Because there was no negligence on the part of any one proven in this case which caused, or contributed to cause, the plaintiff to be injured. The undisputed facts show that the injury to plaintiff was the result of an unforeseen accident, for which nobody was liable. 2d. The defendants are not liable in this case for the acts of Rule, even if the court should find that Rule’s negligence injured the plaintiff. Rule was employed by an independent contractor and the defendants had no control whatever over him. Independence v. Slack, 134 Mo. 66; Loth v. Theater, 197 Mo. 354; Richmond v. Sitterding, 111 Va. 354; Crenshaw v. Ullman, 113 Mo. 633; Williamson v. Fischer, 50 Mo. 178; Homer v. Nicholson, 56 Mo. 220; Benjamin v. Railroad, 133 Mo. 274; Long v. Moon, 107 Mo. 334; Strauss v. Louisville, 55 S. W. 1075; McCarty v. Parish, 36 Am. Rep. 320; Hexamer v. Webb, 101 N. Y. 577; Johnson v. Helbing, 92 Pac. 360; Geist v. Rothschild, 90 111. App. 324; Boomer v. Wilbur, 176 Mass. 482; Smith v. Exchange, 91 Wis. 360; Symonds v. Directors, 105 Md. 254; DeForest v. Wright, 2 Mich. 368; McNulty v. Ludwig, 100 N. Y. Supp. 703; Massey v. Oates, 39 So. 142; Neumeister v. Eggext, 52 N. Y. Supp. 481; Francis v. Johnson, 127 Iowa, 391; Sanford v. Railroad, 33 L. R. A. 564; Hilliard v. Richardson, 63 Am. Dec. 743; Scammon v. Chicago, 25 111. 424. (2) The action of the court in ruling on the declarations of law submitted, showed that the court tried the case on the wrong theory.

      Percy Werner and A. G. Dobie for respondent.
    (1) There are three theories, on either of which a finding for plaintiff can be sustained: First, negligence of the contractor’s servants in handling the ladder on'the public sidewalk; second, the necessary nse of the sidewalk at the place and time in question for the purposes for which Scott and Wolff Painting Company was employed by appellants; third, the creation of a nuisance on the public sidewalk. (2) The rule that one employing an independent contractor is not himself liable for an injury to a third person is subject to the qualification that the work which the independent contractor is to do is neither unlawful in itself nor dangerous to others. Independence v. Slack, 134 Mo. 75; Peters v. Railroad, 131 S. W. 917; Thompson on Negligence, sec. 621; Curtis v. Kiley, 153 Mass. 123. (3) Defendant was liable for injuries caused by the servants of the Scott and Wolff Painting Company, in removing the sign from in front of the building in question. Loth v. Theater, 197 Mo. 328; O’Hara v. Gas Co., 131 Mo. App. 428; French v. Coal Co., 81 N. E. 265; McHarge v. Newcomer, 117 Tenn. 595; Bridge Co. v. Steinbrock, 61 Ohio St. 215. It being necessary to place the ladders on a public sidewalk in the busiest part of the city, defendants’ contract with the painting company was to do that which was not only dangerous to the public, but also unlawful. Pollock on Torts (Webb’s Am. Ed.), p. 624; Ellis v. Gas Co., 2 El. & B. 767; -2 Cooley on Torts (3 Ed.), pp. 1088-93. The above propositions are supported by the very authorities cited-by appellants. See, also, 16 Am. and Eng. Ency. Law (2 Ed.), 196-7; Houghton v. Lumber Co., 14 L. R. A. (N. S.) 913; Water Co. v. Ware, 16 Wall. 566. (4) Setting up two ladders on a sidewalk in midday on a busy thoroughfare and allowing two men to mount these ladders and attempt to handle a large, cumbersome, unwieldy muslin sign, in windy weather, constituted a nuisance. Waller v. Ross, 100 Minn. 7. (5) The exceptions to the rule exempting an employer from liability for the negligence of the servants of an independent contractor, include cases, first, where the employer contracts to have something done which obviously exposes others to peril; second, where the work contracted for directly results in a nuisance flowing therefrom; and, third, where the party engaging the independent contractor is under a legal duty to see that the work is properly performed. 2 Cooley on Torts, pp. 1088-1097; Woodman v. Metr. R. Co., 149 Mass. 335; Curtis v. Kiley, 153 Mass. 123; Robbins v. Chicago, 71- U. S. 657; Kampman v. Rothwell, 107 S. W. 120. (6) Work on or over- a public highway is intrinsically and necessarily dangerous to the traveling public, and the duty rests on the principal to see that due care is observed for their safety. Cooley on Torts, p. 1095; 1 Thompson on Negligence, secs. 648-652; Wiggins v. St. Louis, 135 Mo. 558; Davis v. Whiting, 87 N. E. 199; G-ray v. Gas Co., 114 Mass. 149.
   BROWN, C.

This cause is certified to this court from the St. Louis Court of Appeals because one of the judges of that court sitting therein deems its decision contrary to the decision of this court in the case of Loth v. Columbia Theatre Co., 197 Mo. 328. The opinion of the St. Louis Court of Appeals as well as the dissenting opinion of Norioni, J., is found in volume 134 of the Missouri Appeal Reports at page 121 and following. The judgment at the trial was for the plaintiff. It was reversed by the decision of the Court of Appeals.

The action is for damages suffered by plaintiff on account of personal injuries. The defendants were partners, doing a large retail dry goods business in a building of which they were tenants in possession, situated at the southwest corner of Washington avenue and Broadway, two of the most traveled streets in the city of St. Louis. Scott & Wolf Painting Company had a contract to paint, put up and remove all signs used by them. At the time of the accident, January 12,1907, there was a muslin sign stretched on a wooden frame about twelve feet long and five feet wide, tacked over tbe water table above tbe first story of tbe defendants’ building, on wbicb was painted some advertisement relating to their business. It having served its purpose, they had telephoned the Scott & Wolff Painting Company to take it down. The- company sent two men for that purpose with two ladders, one of them fourteen feet and the other sixteen feet in length, which they set up against the building so that they stood on the sidewalk about five feet from the wall, and went up to draw the nails from the sign so that it could be handed down. One of the men, in extracting a nail, misjudged the amount of force necessary for that purpose, and the nail unexpectedly gave way, causing him to lose his balance, and he fell upon the plaintiff, who was then passing along the sidewalk near the foot of the ladder, inflicting the injuries for which this suit is brought. The method adopted for removing the sign by the use of the ladder resting upon the sidewalk was a usual one.

The petition upon which the case was tried contains two counts- upon the same injury. The first alleges that the ladder was, by the men working upon it, negligently permitted to fall, and that either the ladder or the man who was working on it fell onto and against the plaintiff. The second count charges that the “use of said street and sidewalk by the defendants under the circumstances mentioned was negligent and wrongful, and constituted a nuisance, and that it was defendants’ duty to have protected plaintiff in his rightful use of said public sidewalk at the time in question, and that by reason of such negligent and wrongful use of the public sidewalk and street, and the breach of said duty by the defendants at the time and place in question, plaintiff sustained the injuries mentioned.” The trial court being very properly of the opinion that upon the facts stated there was no question to submit to the jury other than the assessment of damages, peremptorily instructed them that their finding must be for the plaintiff and against the defendants. The propriety of this instruction and the refusal of a peremptory instruction in their favor asked by-defendants, fully present the only questions in the case.

The plaintiff in the two counts of his petition presents two separate phases upon either of which he might predicate his right to recover. (1) Negligence of the workman who fell upon him in causing the ladder to fall, and (2) negligence of the defendants in causing or permitting the work in question to be done in the time and manner indicated in the statement. We will for convenience present these questions in inverse order to that in which we have stated them.

I. It being admitted that “the work of removing the sign necessitated the occupancy of the sidewalk with ladders, ’ ’ the question is presented whether or not the defendants in directing the work to be done violated or infringed upon any right of the plaintiff as a traveler upon the street. The abutting proprietor has a right in the use of the street entirely distinct from that of the public. This is usually denominated “the easement of access,” and constitutes, the real foundation and consideration for those special burdens imposed upon them for the construction and improvement of such highways. This right is as much property as the land to which it pertains, and the Legislature can no more deprive a man of one than the other without compensation. [Lackland v. Railroad, 31 Mo. 180.] It has its foundation in a universal necessity, for of what public benefit would highways be unless in connection with the right of ingress and egress for the purpose of the traffic for which they are designed? It is true that the exercise of this right is, like the exercise of the right of the public to travel on the same highways, subject to the reasonable control of the Legislature, applied either directly or through its municipal ag’eneies, but each of these rights is subject to those modifications and restrictions necessary to the exercise of the other.

Judge Dillon in his excellent work on Municipal Corporations (4 Ed.), sec. 730, says: “But it is not every obstruction, irrespective of its character or purpose, that is illegal, even although not sanctioned by any express legislative or municipal authority. On the contrary, the right of the public to the free and unobstructed use of a street or way is subject to reasonable and necessary limitations and restrictions. The carriage and delivery of fuel, grain, g'oods, etc., are legitimate uses of a street, and may result in a temporary obstruction to the right of public transit. . . . Temporary obstructions of this kind are not invasions of the public easement, but simply incidents to or limitations of it. They can be justified when, and only so long as they are, reasonably necessary. There need be no absolute necessity; it suffices that the necessity is a reasonable one.” This passage is quoted with approval by this court in Gerdes v. Iron Co., 124 Mo. 347, 354, and Corby v. Railroad, 150 Mo. 457, 467.

There is no more useful purpose to which a street may be put in behalf of the abutting proprietor than that which contributes to the growth and material development of the communities which it serves. "While the public requires and demands the best facilities for travel, the necessity for these facilities is founded largely in the material growth and prosperity of the communities who maintain them. For this reason it has always been considered that the abutting proprietor was of right entitled, not only to transfer his materials for improving his premises from the street, but to hold it on the street or sidewalk for a reasonable time to enable it to be transferred directly to his structures. [Tolman v. Chicago, 240 Ill. 275, and cases cited.] The two classes of rights being co-existent each must be exercised with reference to the existence of the other. In this case the use in question was one directly arising from the prudent and profitable use of the premises. The evidence does not show that any special or peculiar danger was connected with it. That an accident resulted in this case is perfectly true, but if that alone constitutes evidence of the dangerous character of the work, that question would cease to be an element in any judicial controversy of this character, because the happening of the accident would furnish the rule for its determination. We must hold then that there was nothing in the character of the work out of which this accident grew, or in the character of the place in which it was being done, that fixed upon the defendants liability on account of any accident growing out of its proper performance.

II. It is stipulated by the parties for the purposes of the trial and determination of this case that the muslin sign which was being removed from the front of the defendants’ store at the time and place of the accident belonged to them and was being removed on their behalf by the Scott & Wolff Painting Company, which had a contract to paint, put up and remove all signs used by the defendants. This evidently means that with reference to this work the painting company was an independent contractor employing its own servants and doing the work in its own way, being bound to the defendants only for the result, and that the servants engaged in the work were not the servants of defendants and that therefore the rule respondeat superior does not apply between them, unless there is something in the circumstances of this case to take it out of the general and well established rule. We have seen that in contracting to have this work done the defendants were clearly within their rights, because the use to which the street would be put in the proper performance of the contract was one to which it was lawfully subject, and was not particularly dangerous in its character.

The plaintiff, however, insists that there is some thing in its nature which calls for the personal supervision of the owner for whose benefit it is being done so that he cannot relieve himself of personal responsibility for the acts of workmen with whom he has no contract relation whatever. This principle, carried to its logical conclusion, would probably extend to all classes of work involving the use of the streets, and we should be slow to adopt it unless under the compelling influence of a settled judicial policy of our own State.

It is true that an owner who contracts for the creation of a condition on his own property which is dangerous to third persons will be liable for injuries resulting therefrom, for it is evident that one has no more right by contract to set traps for his neighbors than to set them with his own hand. Therefore one who digs or causes to be dug upon his own premises a pitfall so near to the street that travelers in the exercise of their right to pass along it are liable to fall in and be injured, must take care at his own peril to see that it is protected. This he may do personally or by contract, as best suits his convenience; if by contract, however, he is still responsible for the result. But if the contractor, while building a fence to protect it, should carelessly throw a stick or board upon a passer-by or negligently fall upon him himself, the owner would not be liable for a resulting injury, because it would not be caused by the pitfall, nor by the contract to protect it, but by a collateral act done in performance of a contract which does not contemplate, and gives no sanction to, carelessness.

This principle with its limitations is well illustrated by the late Massachusetts case of Davis v. Whiting, 202 Mass. 91. In -that case the defendant, who, like these defendants, was the owner of a large store, contracted with a painter to paint the iron shutters. In the doing of this job a light ladder scaffold was used, and while this was being raised by tackle hung from the cornice, it came in contact with the bottom of a shutter which had been carelessly left open, and raised it off its hinges so that it fell upon the plaintiff, a passer-by in the street. This case, in its facts, as well as in the principles involved, bore a striking resemblance to the one we are considering.

On the trial the following question was asked the jury and answered by them affirmatively in the verdict: “Was the work of painting the shutters necessarily attended with danger to persons passing along Belcher Lane?” There was a verdict for the plaintiff and in its opinion reversing it the Supreme Judicial Court said: “If the question meant, ‘Was there such risk of accident from the probable negligence or want of skill of some of the workmen, as necessarily to involve an appreciable danger of injury to persons passing below,’ there was evidence to warrant the finding. But the finding of this fact would not create a liability on the part of the defendant.” Referring to the same line of Massachusetts cases cited in the plaintiff ’s brief in this case the court said: “It seems that the danger which the jury were permitted to find sufficient to create a liability on the part of this defendant was that which is incident to doing difficult work, where an injury may result from the lack of the exercise of skill and care, or even from pure accident. This is a different kind of danger from that which was made a ground of recovery in the cases above cited.”

The light shed by this opinion upon the very question we are now considering will have to be our excuse for quoting a synopsis of the decision upon this point from the syllabus, as follows: “Where the owner of a building, who employed an independent contractor to paint the shutters thereon, had no right to, and did not, exercise control over the contractor, the mere fact that the probable negligence or want of skill of the workmen might result in injury to persons passing below by the falling of the shutters did not render the owner liable for injuries so received, as the danger did not come from the condition of the property or the use to which it must necessarily be put in doing the work, but from the unskillful and. negligent act of the contractor and his servants.”

One phase of this question is illustrated by the decision of this court in Wiggin v. St. Louis, 135 Mo. 558. A traveler fell into an unprotected excavation along the margin of the street, which had been dug as a cellar by a contractor in the performance of a contract to erect a building for the owner. This court reversed a judgment founded on a directed verdict for the owner, on the sole ground that her contract required the contractor to dig a cellar in tjiat place and that, having caused the dangerous condition, the duty was upon her to protect it.

In the City of Independence v. Slack, 134 Mo. 66, the other phase of the same question is illustrated. In that case also there was a directed verdict for the owners, the judgment upon which was sustained by this court. They were engaged in the construction of buildings abutting on the street and of a stone sidewalk on the street in front of the building and had made an excavation and prepared the street for laying the sidewalk. The excavation was guarded so as to prevent persons from falling therein and large stones were brought for use in the construction of the sidewalk. For the purpose of fitting and dressing these stones they were placed upon the street, leaving a passway three or four feet wide between them and the curbing, where they remained for two weeks or more. The owners had contracts with one Stewart to furnish the stones and construct the sidewalks in front of their respective buildings. In holding that the owners were not liable, this court said: £ £ There are some old Englisia cases which hold generally and broadly that ‘the person from whom the whole authority is originally derived is the person who ought to be answerable’ whether the person who did the work was the servant or an independent contractor of the employer. [Bush v. Steinman, 1 B. & P. 404.] This rule was followed for a time in Massachusetts. [Lowell v. Railroad, 23 Pick. 24.] But it is now well settled in this country as well as in England, as a general rule, that one person is only liable for the act or negligence of another when the relation of master and servant exists between them. [1 Beven on Neg. (2 Ed.), pp. 718 et seq.] The facts bring this case within no recognized exception to this rule.”

The general rule, together with exceptions to its universal application, is well illustrated by the three cases from which we have already quoted. These so-called exceptions, it will be noted, refer to cases in which a primary duty rests upon the owner which he fails to perform. The foundation of his liability is his own failure to perform this duty and not the negligence of the independent contractor or his servants. Different aspects of the same question are also interestingly discussed in the following cases: Long v. Moon, 107 Mo. 334; Crenshaw v. Ullman, 113 Mo. 633; Benjamin v. Railroad, 133 Mo. 274; Williamson v. Fischer, 50 Mo. 198; Richmond v. Sitterding, 101 Va. 354; Hexamer v. Webb, 101 N. Y. 577.

Holding, then, as we do, that the use to which the street was being put in removing the sign in question was a lawful one, founded upon the easement of access incident to .the abutting property, it necessarily follows that such use and the general use of the public are mutual and interdependent. Had the plaintiff negligently knocked down the ladder and thus injured the man working on it, he would have been liable to respond in- damages for the injury, and we can see no reason why a distinction should be made with respect to such liability other than that arising from the applicability in this case of the doctrine respondeat superior, because the injury arose from the act of a servant of the Scott & Wolff Painting Company in the performance of the work for his master. If the doctrine contended for by plaintiff is to be followed in this case, it will logically lead to the liability of the tenant for any accident that may happen through the negligence of the driver in delivering a load of coal into his premises although it may have been purchased for delivery at that place.

We do not think Loth v. Columbia Theatre Company, 197 Mo. 328, is an authority against the view we have taken. The judgment against the defendant in that case was reversed and the case remanded by this court on the sole ground that it had been submitted upon the theory that the electric sign there in question was a nuisance per se, when in fact and in law it was not. It is true that the court, in its opinion, stated that under the pleadings and evidence the defendant would, had the case been properly submitted upon' that issue, have been liable, but this statement was founded upon the record in that case, and should be disregarded in this.

It follows that upon the stipulation in this case the finding and judgment of the trial court should have been for the defendant, and its judgment for the plaintiff is accordingly reversed and the decisions of the St. Louis Court of Appeals affirmed.

Bond, C., concurs in the result for the sole reason that the work in question is not such as is ordinarily “attended with danger,” and hence the owner incurred no liability by letting it to a competent contractor.

PEE CURIAM. — The foregoing opinion of Broivn, G., is adopted as the opinion of • the court.

All the judges concur.

WOODSON, J.

I concur with the opinion in this case for two additional reasons to those stated therein : first, because the record fails to show that the respondent was injured in consequence of negligence on the part of any one. His injuries were the result of an accident pure and simple (Zeis v. Brewing Association, 205 Mo. 638); and second, even though it be conceded that his injury was the result of negligently pulling the nail, yet it cannot be said that the appellants or the contractors could have reasonably foreseen the result thereof, namely, that the employee pulling the nail would fall from the ladder and upon the respondent.

If the result could not have been reasonably foreseen then there is no liability. [Zeis v. Brewing Assn., supra; Dean v. Railroad, 199 Mo. 386.]


source: Caselaw Access Project

author: BOND, C.

license: Public Domain

text:
    ROBERT E. DAVENPORT, JR., by His Next Friend, v. KING ELECTRIC COMPANY, Appellant.
    Division One,
    March 29, 1912.
    1. WITNESS: Child: Understanding Obligations of Oath: Voir Dire. After plaintiff, between ten and eleven years old, had begun his testimony, and when it appeared that he did not remember his birthday, his father was called to fix that date. When the plaintiff resumed the stand the defendant wished to examine him as to his understanding of the obligation of an oath. The court refused to allow such questions at the time, but indicated that they might be asked later. Held, that, since nothing had transpired which tended to show that the plaintiff lacked knowledge of the obligations of an oath, the trial court’s refusal was not error.
    2. -: -: Over Five Years of Age and Under Nine: Voir Dire. Children ranging from five to nine years may be admitted as witnesses if it appears upon their preliminary . examinations that they have sufficient intelligence to understand the questions put to them and are not otherwise incom'petent. Correct practice demands that this preliminary examination be held before the witness is sworn and admitted to testify.

      3. NEGLIGENCE: Electric Wire: Evidence: Reasonable Inference by Jury. In finding that the wire which caused plaintiff’s injury belonged to the defendant electrical company, the jury were at liberty to draw reasonable inferences from the evidence showing that the vicinity was supplied with electricity by the defendant; that it was engaged in changing poles at the particular spot; that it had been at work there the evening before, and that its men removed the wire which caused plaintiff’s hurt.
    4. PROOF: Facts Peculiarly in Knowledge of Defendant. Slight circumstances are sufficient to establish a fact where the defendant is peculiarly possessed with power to disprove it and fails to adduce such evidence.
    .5. NEGLIGENCE: Electric Wire: Judicial Notice: Law of Science: Demurrer to Evidence. To sustain plaintiff’s contention of defendant’s negligence, there was testimony that the wire which caused plaintiff’s injury was broken and suspended over the street and dropping sparks, five hours before the injury, the end hanging, witness thought, about eighteen inches above the ground. The defendant insists that the court should, of its own knowledge, hold this testimony incredible, because the wire, so defendant says, carried a current of two thousand volts, which, according to the known laws of electricity, was insufficient to transmit the current through the eighteen inches from the end of the wire to the ground. Held, that there is no reason for holding as defendant wishes, for even if that electrical law were established, its application in this case would depend'upon two questions of fact upon which there was no testimony the jury were bound to believe, namely, the exact voltage of the current, and the distance from the end of the wire to the ground. The trial court did' not, therefore, err in refusing to sustain a demurrer to the evidence.
    6. NEGLIGENCE: Electric Wire: Highest Degree of Care. The highest degree of care is required of one who maintains electrically charged wires. The general use of these appliances on the public streets and highways makes it the duty of the owner to exercise a degree of care commensurate with the proper protection of the public.
    7. -: -: Specific Negligence. The charge in a petition of negligent maintenance of a dangerous electrical wire, does not bring the case within the rule that when specific acts of negligence are pleáded, the particular negligence averred must be proved.
    8. VERDICT: Excessive. Where the plaintiff, a child between seven and eight years old, was severely injured and his arm permanently deformed by reason of tbe negligent maintenance by defendant of a charged electric wire, a judgment for $9000 is held to be excessive to tbe amount of $1500.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel O. Taylor, Judge.
    Aeeirmed (conditionally).

      Kinealy & Kinealy for appellant.
    (1) The court ruled that the competency of plaintiff to testify was a question of fact for the jury and to be inquired into on cross-examination of him after he stated the facts of his injury to the jury. This was error. State v. Brown, 209 Mo. 418; State v. Doyle, 107 Mo. 36. (2) When plaintiff was. sworn, the court ruled he was competent to testify because over ten years old and would not permit defendant to examine him or examine him himself to show his incompetency. This was error. Brashear v. Tel. Co., 45 Mo. App. 433; 1 Greenleaf on Ev., see. 367, p. 505; 7 Ency. of Ev., p. 272; Elliott on Ev., sec. 767, p. 85; 1 Rice on Ev., p. 539; State v. Doyle, 107 Mo. 42; McKelton v. State, 88 Ala. 181; State v. Nelson, 132 Mo. 184; Cadmus v. St. Louis B. Co., 15 Mo. App. 286. (3) Defendant was entitled to an examination of plaintiff (who was over ten years old) when he offered himself as a witness to ascertain if he possessed the requisite mental qualifications to testify. State v. Brown, 209 Mo. 418. (4) Defendant’s instruction in the nature of a demurrer to the evidence should have been given. Strack v. Tel. Co., 216 Mo. 601; Luehrman v. Gas Co., 127 Mo. App. 213. (5) Plaintiff can only recover because of the specific. acts of negligence charged to have been committed by defendant and which have been established by the evidence and entitle him to recover, if any such there he. WaldMer v. Railroad, 71 Mo. 514; Price v. Railroad, 72 Mo. 414; Ely v. Railroad, 77 Mo. 34; Bunyan v. Railroad, 127 Mo. 12; Bartley v. Railroad, 148 Mo. 124; Feary v. Railroad, 162 Mo. 75; Hamilton v. Railroad, 112 Mo. App. 509; McGrath v. Railroad, 197 Mo. 105; Oreutt v. Bldg.. Co., 201 Mo. 424.

      Amos B. Taylor and Howard Taylor for respondent.
    (1) The evidence produced by the plaintiff tended to prove every material allegation of the petition. Therefore, the case was one to be submitted to the jury — if the petition stated a cause of action. (2) The plaintiff, being over ten years of age at the time that he was sworn as a witness in the case, was a competent witness. R. S. 1909, sec. 6362; State v. Scanlan, 58 Mo. 205; State v. Jefferson, 77 Mo. 138; State v. Doyle, 107 Mo. 42; State v. Nelson, 132 Mo. 198; State v. Prather, 136 Mo. 25; State v. Brown, 209 Mo. 419; State v. Jeffries, 210 Mo. 326. (3) There was no demand made or offer to show that the plaintiff was peculiarly incompetent or that he was an idiot or lunatic or did not possess the usual intelligence of a boy of his age. The court granted defendant leave to ask. questions to show this, which defendant did not accept. The court stated its position on the question to be: “Yet I think the law fixes the age at ten as one when a person may testify in the absence of some proof” of ineompetency. The court made this ruling after having seen the appearance of the witness, noted his manner and intelligence, whilst giving his evidence before any objection was made. The court being thus satisfied of the competency of the witness, there was no abuse of its discretion in permitting the witness to testify, even if a proper objection had been'made at. the proper time. The trial court may, from the appearance, manner and intelligence of the witness, either before or after lie has been sworn to determine his competency. State v. Scanlan, 58 Mo. 205; State v. Jefferson, 77 Mo. 138; State v. Doyle, 107 Mo. 42; State v. Brown, 209 Mo. 418; State v. Jeffries, 210 Mo. 326. (4) If the fact that the witness was clearly competent is demonstrated by the evidence given, the court could not do the injustice of condemning’ the act of the trial judge that resulted in putting before the jury fair, competent and material evidence, even if the trial court'made a mistake in not allowing defendant’s counsel to investigate the competency of the plaintiff, after he had been sworn and begun his testimony without objection. And the ominous failure of appellant when it had full time and opportunity, by cross-examination, to avail itself of the privilege of showing the incompetency of the plaintiff, is an eloquent answer to its claim of injury or prejudice by the court’s action. The contention of appellant is a grasp at a shadow at the sacrifice of the substance of this matter. The evidence showing the competency of the witness, the attendant error of the court if there was such, was harmless. The court was found right on the trial test, and in the face of the record of plaintiff’s evidence, we think the court did entirely right in exercising its discretion in permitting the plaintiff to testify as a witness. R. S. 1909, sec. 2082; Schuepbach v. Gas Co., 232 Mo. 611. (5) Appellant’s contention that a demurrer to the evidence should have been sustained is not tenable under the evidence in this case. The proof being that the appellant was maintaining the dangerous agency of electricity in a public highway, it was bound to exercise the highest practical care to prevent its escape and injury to a person on the highway, where he has a right to be. And the fact that this plaintiff, whilst lawfully using the highway, was without fault on his part injured by defendant’s electric fluid escaping from the wire down on the street, is “conclusive proof of the defect of the insulation and negligence of the defendant;” and the plaintiff being free from negligence, the defendant is liable according to the well settled rule of decision in this and other states. Geisman v. Electric Co., 173 Mo. 678; Young v. Oil Co., 185 Mo. 665; Ryan v. Transit Co., 190 Mo. 634; Yon Trebra v. Gaslight Co., 209 Mo. 658; Clark v. Railroad, 234 Mo. 423. (6) The case was fairly tried and the verdict is not excessive. The boy from youth to manhood, according to the uncontested evidence, must either carry through life a dead, deformed and useless hand and forearm, or, what the doctors say is the better alternative, have his arm amputated. Nine thousand dollars is not too much as compensation for such injury according to the rules of decision in this State. This was the boy’s right hand, drawn and doubled so as to make it useless and deformed and necessitate its amputation as the best relief for him. Who can fix a fairer measure of compensation than twelve fathers or brothers who sit in a jury box, free from undue influence? There is no evidence of passion or prejudice in such a verdict, though appellant complains of its hardship as due to the fact that it is a small corporation. We have no evidence in the record as to its size, but we are content to believe that a corporation supplying the large community with electricity, as disclosed by the evidence of defendant it did, is not so small a concern that it should invoke a different rule than the facts warrant.
   BOND, C.

Plaintiff, then between seven and eight years of age, was injured on the 2d of September, 1905, while using a street, by coming in contact with an electrically charged wire which was broken and hanging over the street about eighteen inches above the curb and which touched one of plaintiff’s hands, causing him to be severely injured and a permanent deformity of the arm. Plaintiff sued by his next friend on the 18th of November, 1905. Defendant answered by general denial and plea of contributory negligence. The trial was had on the 14th of May, 1908.

Plaintiff testified that he was then ten years of age; that he was seven when he was injured, three years before; that he did not know his birthday. He was temporarily withdrawn and his father was put upon the stand, who testified that plaintiff would be eleven years old on the 24th of December, 1908. Plaintiff was then recalled. Whereupon defendant asked leave to examine the witness to ascertain if he “understood the obligation of an oath.” The court upon objection of plaintiff’s counsel declined to permit that examination to be gone into at the time, but indicated defendant might ask questions afterwards.

The examination of plaintiff was then continued in chief, after which he was cross-examined but no questions were put to him touching his knowledge of the obligation of an oath. While being cross-examined, he testified in substance that his father was a motorman; that he was sent to the bakery to get bread for breakfast about seven a. m.; that in the course of his trip he came to a place where “building was going on there and they were just digging the foundation and these pieces of plank were' there to walk over. There was no sidewalk — just dirt. I walked along the sidewalk until I got to that place, and I jumped for the board and it slid, and my hand went up, and touched that wire. These boards were between the house line and the curb line. I was about two feet from the curb on the inside when I slid. I saw this wire hanging down and it was about two or three inches inside of the curb, and there were two telegraph poles there, and the wire was hanging down along the side of the pole inside of the curb , about two or three inches. I jumped from one board to the other to keep out of the mud. I did not get hold of the wire but my hand came in contact with it to push it out of my way. The wire was on the second pole I came to. I did not touch the poles.” When the witness received the electric shock he became unconscious and was taken to. a neighboring drug store, where, he says, “he came to,” and thence was taken home and treated by two physicians, whose testimony tends to show that it would be better for him if his arm were amputated.

The father of plaintiff testified: “I was at home the day my boy got hurt, as that was my day off. He left home to go to the bakery about seven o’clock. I got to the place where the boy was hurt about five minutes afterwards, I guess. A lady came to me and told me the boy was at the drugstore and I started for there. I saw two poles near there. That exact pole and an old pole which had not been taken down; there seemed to be a change of wires on these poles. They were taking down the old poles and new ones were being put up at this place and further down I saw the wire hanging there and don’t remember much about it," as I was very much excited. It was hanging about eighteen inches from the pole and looked to me probably eighteen inches or a foot from the ground. It was an insulated wire. An electric current for electric lights was carried on it. The King Electric Company has light wires out there. Before I left the drugstore with the boy I telephoned for the doctor and then took the boy home. About an hour afterwards I saw the wire again, and the King electric light men were there with their wagon taking it up. That name was • on the wagon.”

A letter carrier also testified for plaintiff that in the afternoon of the day before plaintiff was hurt, he saw defendant’s wagon and a gang of men working' there, bossed by a young man then in the court room. Adding, “I was on the opposite side of the street delivering mail going west and probably got diagonally across to where this electric light was when I heard a holler and a shont and saw the boy fall down and a lady ran out of the real estate office and a man out of the drugstore. . . . The boy fell on the dirty sidewalk just about where the wire was hanging. The wire hung over the sidewalk about a foot, I should judge, from the curb.”

Other witnesses for plaintiff testified that the injury happened as stated above; that the night before it stormed and rained but cleared about five o’clock a. m. One witness stated he saw this wire emit sparks •at two a. m., and that the accident, happened about seven-thirty or eight; that the wire causing the injury was an insulated one, such as is used to carry electric currents; and that defendant furnished electricity in that part of the city.

The evidence of the defendant is not material to the scope of review arising on the questions presented on this appeal. Plaintiff had judgment for $9000, from which defendant duly perfected its appeal.

OPINION.

I. It is insisted for defendant that the refusal of the court to cause a voir dire examination of the plaintiff upon the request of defendant, made after plaintiff had been sworn as a witness and had proceeded to testify until he stated in answer to a question that he did not remember Ms birthday, was reversible error.

This point is untenable, unless it can be shown that the trial court abused its discretion or misconceived the law in this matter. [2 Rice on Evidence, n. 289 et seq.; State v. Scanlan, 58 Mo. l. c. 205; State v. Jefferson, 77 Mo. l. c. 138; State v. Doyle, 107 Mo. l. c. 42; State v. Nelson, 132 Mo. 184; State v. Brown, 209 Mo. l. c. 419; State v. Jeffries, 210 Mo. 326.]

The statute in disqualifying certain persons to testify, among others, specifies, “a child under ten years of age, who appears incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.” [R. S. 1909, sec. 6362.] This statute has been applied in the foregoing-citations, where it has been uniformly ruled that children ranging- from five to nine years may be admitted as witnesses if it appears upon their preliminary examinations that they have sufficient intelligence to understand the questions put to them and are not otherwise incompetent. In all of those cases the examination of the witness either by the court’s initiative or upon the request of the adverse party, was had before the witness was sworn and admitted to testify. This is the correct practice, for the object of such an inquiry is to determine the personal competency of a person proposed as a witness; hence, the demand therefor should be made before the witness has been sworn or admitted to testify.

In the case at bar no objection was made when the plaintiff was sworn as a witness, nor to the giving of his testimony until he had been recalled after the temporary interrogation of his father showed the date of his birth. The witness had stated that he was ten years old and had been injured three years before, when he was seven years old, before any objection to his further testimony was made by defendant. The request then made was not that the witness should be examined as to his statutory disqualification (incapacity to understand the questions or to answer them truly) but as to his comprehension of the obligations of an oath. If the latter disqualification existed, then the witness was incompetent under the common law regardless of his age. Nothing had transpired up to the time this request” was made which tended even by inference to show that the witness on the stand had no knowledge of the obligations of an oath or was deficient in moral training. Hence there was no excuse for this untimely request, made by defendant. The record shows that the trial judge distinctly stated that he simply denied the right to go into the inquiry at that time, but would not prohibit questions by the defendant after-wards. The witness was afterwards fully cross-examined, but no questions were put as to his knowledge of the nature and obligations of an oath or tending to elicit any answers on that point. We have set out much of the testimony of this witness while being cross-examined by the defendant, and it is only fair to say that it leaves the impression of an ingenuous and graphic narration of facts and affords no intimation that the witness, then between ten and eleven years of age, was insensible to the sanctions of an oath or deficient in the measure of intelligence common to boys of that age. We rule the point under review against defendant.

II. Defendant insists that the peremptory instruction to find in its favor should have been given at the close of plaintiff’s case. In support of this view, it is argued by defendant that there was no evidence that the wire causing plaintiff’s injury belonged to the King Electric Company, but this contention overlooks the reasonable inferences which the jury were at liberty to draw from the statements of the witnesses, showing that this part of the city was supplied with electricity by defendant; that it was engaged at the spot where plaintiff was injured in changing poles; that it had been at work there on the evening before, and that its men and representatives removed the very wire which caused plaintiff’s hurt. If any real doubt existed on that subject, the disproof of ownership was peculiarly within the power of the defendant. No attempt whatever was made to show that it did not own these insulated wires or was not engaged in lighting this territory. Slight circumstances are sufficient to establish a fact where the defendant is peculiarly possessed with power to disprove it and fails to adduce such evidence. We think there was ample evidence in the record in this case to warrant the inference that defendant owned the wire causing the injury.'

III. Defendant next insists that there was no credible evidence tending to prove its negligent maintenance of the wire causing the injury, and that for this reason its demurrer to the evidence should have been sustained.

Mrs. Richter’s testimony shows that the wire was broken and suspended over the street for the space of five hours before the injury to plaintiff, as she saw it, as early as two o’clock in the morning, dropping sparks of fire; that the rain had ceased at five o’clock; that she thought the end of the hanging wire was about eighteen inches above the ground. Defendant insists that this testimony is incredible, because it says the wire in question carried a current of about two thousand volts, and that according to the known laws of electricity, this voltage was insufficient to .transmit the current from the end of the wire through an air space of eighteen inches to the ground. Defendant asks the court to affirm this law as of its judicial knowledge.

If this theory of the defendant could be scientifically established as one of the laws ot electricity, and therefore proper to be declared as within the judicial knowledge of the court, still there is no reason why that should be done in the present case, for its application at all would depend upon two questions of fact. First, the exact voltage of the electrical current carried by the wire; and, second, the distance of the end of the wire above the soil. There was no testimony on either of these subjects which the jury were bound to believe to be true. They might have disbelieved the evidence relating to the amount of the electrical current, and they might have disbelieved the testimony touching the distance between the end of the wire and the ground. On the other hand, the jury had the right to believe the evidence of Mrs. Eichter, that electrical sparks were being emitted by this wire at two o’clock in the morning, and to find from that fact that the end of the wire was close enough to the earth to permit of this sparking in accordance with the laws of electricity. As the credibility of this witness’s testimony was a matter for the jury to determine, and as the record shows there was ground upon which it could be believed without contravening the electrical principle assumed by defendant, we cannot hold that there was no -basis for the finding in this case that the dangerous condition of the wire had existed for a sufficient length of time to charge defendant with its negligent maintenance. We, therefore, rule that the trial court did not err in refusing to take the case from the jury on the theory that the testimony of Mrs. Eichter was incredible.

There was ample proof in the record for the finding by the jury that the defendant owned the electrical wires causing plaintiff’s injury, and that he met with the mishap where he had a right to be and without fault on his part. The law on this subject has been announced after the most careful consideration in a number of recent decisions, to the effect that it is the duty of the owner of that dangerous agency to exercise the highest degree of care in maintaining electrically charged wires. The general use of these appliances on the streets and highways which the public are compelled to use at all times, makes it the duty of the owner to exercise a degree of care commensurate with the proper protection of the public. [Geismann v. Mo. Edison Elec. Co., 173 Mo. l. c. 674; Young v. Waters-Pierce Oil Co., 185 Mo. l. c. 664; Ryan v. St. L. Transit Co., 190 Mo. l. c. 634; Von Trebra v. Gaslight Co., 209 Mo. l. c. 659; Clark v. Railroad, 234 Mo. l. c. 421.]

IY. The charge in the petition in this case is negligent maintenance of a dangerous electrical wire. This does not bring it within the purview of those decisions where it is ruled that when specific acts of negligence are pleaded, it devolves upon plaintiff to prove the particular negligence averred.

The recovery in this case was had upon the theory that the broken wire had been in that condition, and dangerously charged with electricity, for a sufficient length of time to make its existence at the time plaintiff was hurt an act of negligent maintenance on the part of the defendant. There was testimony inferably proving these facts. The recovery was had on that theory alone, and not for some different or other unpleaded negligence. The instructions in this case submitted this issue properly. Nor are they open to the objection of assuming facts in dispute. Nor can we find any evidence that the court by refusing other instructions than those it gave for defendant excluded from the jury any issué proper for their consideration. The result is that the judgment herein is affirmed.

Brown, G., concurs.

PER CURIAM. — The foregoing opinion of Bond, C., is adopted as the opinion of the court. All the judges concur, as per curiam opinion filed herewith.

PER CURIAM. — The court concurs in the reason- . ing of our learned commissioner as expressed in his opinion, and to that extent adopts his opinion as the opinion of the court. We are however of the opinion that the verdict and judgment in this case are excessive, and for that reason the judgment should not he affirmed except upon a remittitur being entered in the sum of $1500, so as to leave such judgment in the sum of $7500. If therefore the plaintiff will within ten days enter a remittitur in the snm of $1500, as and of the date of the judgment in this cause, then said judgment so reduced to $7500 will be affirmed in that sum as and of the date of its original entry.

If however plaintiff refuses to file such remittitur within said ten days, then this judgment shall be reversed and the cause .remanded. To this extent the opinion of our commissioner is modified and as thus modified is adopted as the opinion of the court.

All the judges concur.


author: BOND, C. VALLIANT, J.

text:
    GEORGE BENNETT, by his next Friend, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Appellant.
    Division One,
    March 29, 1912.
    1. TRIAL: Province of Jury: Evidence. If .there is material evidence tending to prove a cause of action, although it conflicts with other evidence, or if an inference can be legally drawn from undisputed evidence which tends to prove a cause of action although a contrary inference might be legally deduced, then the case is for the jury.
    2. NEGLIGENCE: Privileges of Licensees on Railroad Tracks: Duty of Licensees. Laborers employed by a contractor to whom a terminal railroad association lets work in its yards, are privileged to be on and about its yards and to use the same to the extent implied from their avocations, and for all reasonable and proper purposes of entering and leaving the places where they are at work, though they must use the yards and tracks with due regard to the danger arising from the necessary movement of trains.

      3. -: Care Due to Licensees in Railroad Yards. A terminal railroad association owes to the employees of a contractor to whom it lets work in its yards that degree of care and watchfulness which an ordinarily prudent person would exercise under similar circumstances to prevent injury.
    4. -: Last Clear Chance Doctrine. The person who has had the “last clear chance” to avoid injuring another who is, whether negligently or not, in a position of apparent peril, must exercise ordinary care to prevent the injury, else he will be liable on the ground that his failure to exercise such care was the proximate cause of the injury.

      Held, by VALLIANT, J., concurring in the result, that the doctrine which allows recovery in some cases despite the contributing negligence of the person injured is well called the “humanitarian doctrine,” for it is simply an exception, on humanitarian grounds, to the general rule. For example, when an engineer sees a man in peril on his track, or, even though he does not see him, is running his engine through a district where he knows people are likely to be upon the track, and can save his life by a mere lifting of his hand, he is not excused for failing to do so by the fact that the man was guilty of negligence in going on the track.
    5. -: -: Evidence: Directed Verdict. Where the plaintiff, a workman employed by a contractor in defendant’s yards, testified that he did not see the train that struck him until it was right upon him; and the engineer .testified that his view was obstructed by the tank of the tender while his engine backed so that he did not see the plaintiff when he was struck; and where the lookout on the front of the tender, corroborated by another witness, says that he saw the plaintiff in a position of danger when 150 feet away, that he was warned and stepped in the clear, and then, while attempting to board a train going in an opposite direction, backed into danger just at the time the tender reached him, there is no basis for the application of the “last clear chance” rule for the plaintiff’s benefit, and the trial court should have directed a verdict for defendant.
    ti. TRIAL: Province of Jury: Testimony of Adverse Party. When the defendant, after having introduced evidence, seeks to have the case taken from the jury by a peremptory instruction, the plaintiff is entitled to the benefit of the probative force of testimony given on behalf of the defendant, or any legitimate inferences therefrom.
    Appeal from St. Louis City Circuit Court. — Hon. Virgil Buie, Judge.

      Reversed.

      McKeighan é Watts, Wm. P. Gentry, T. M. Pierce and J. L. Howell for appellant; G. T. Priest and 8. P. McChesney of counsel.
    The court erred in refusing to direct a verdict in favor of defendant: (a) Because the plaintiff was injured solely through his own negligence in suddenly stepping from a position of safety in front of the moving engine and tender. Lennon v. Railroad, 198 Mo. 514; Giardina v. Railroad, 185 Mo. 330. (b) Because the plaintiff was a workman whose business took him about the railroad tracks, and as it was his duty to look out for the movement of cars, the humanitarian doctrine had no application. Degonia v. Railroad, 224 Mo. 564; Yan Dyke v. Railroad, 230 Mo. 259; Brockschmidt v. Railroad, 205 Mo. 435; Ginnochio v. Railroad, 155 Mo. App. 163; Hitz v. Railroad, 152 Mo. App. 687.

      Rassieur, Buder & Buder for respondent.
    (1) The facts bearing on the issue of contributory negligence are disputed, or when they are undisputed but admit of different constructions and inferences, the issue must be left to the jury. Eckhard v. Transit Co., 190 Mo. 593; Waddell v. Railroad, 213 Mo. 8; White v. Railroad, 202 Mo. 539; Felver v. Railroad, 2Í6 Mo. 195; Ellis v. Railroad, 234 Mo. 673. (2) ' The law is well settled now in this State, that where one oblivions of his danger is run down and injured by a train, the company is liable, if the catastrophe occurred where it is entitled to a clear track, only when the engineer or those in charge of the train actually, saw the injured in time to have averted the collision. But where it has no right to assume the track is clear and may anticipate the presence of persons on the track at all times, then the law imposes upon it the duty of keeping a watchful lookout for them and the duty of exercising ordinary care to avoid injuring them. Murphy v. Railroad, 228 Mo. 56; Ellis v. Railroad, 234 Mo. 657.
   BOND, C.

Plaintiff, seventeen years of age, was an employee of a contractor who had been engaged by defendant to install for it a block system of signals for use in its tracks and yards in St. Louis and at other points. Plaintiff had been doing this work for six weeks or two months. It was the custom of defendant to provide for plaintiff and persons in the same service a “plug” train which would take them to their work across the river in the morning and bring them back in the evening. This train stopped at a point in the city of St. Louis near which Eighth street extended to double tracks owned by defendant. The street did not cross these tracks but lay entirely south of them.

On the 8th of July, 1908, plaintiff, in company with his foreman and others, returned on this train to its stopping point, about 5:20 p. m. After they debarked, plaintiff was told by his foreman that the pay train would not be in that afternoon, and probably on that account the men would not be paid on that day. Plaintiff then observed that two of the men who had come over with him and who had left while he was talking to his foreman were about to enter into a curve which the defendant’s two tracks describe at that point, and through which, over an elevation beginning at the point where plaintiff was standing, they proceeded across trestle works for about four blocks and then six blocks due west until they reached the union station. Plaintiff’s employers kept an office in the yards at the union station, where plaintiff and his fellow-workman were paid, and plaintiff says he intended to use these tracks as a pathway to said office. At the point where plaintiff stood there was an embankment about two feet above the surface, which was the beginning of the elevation of the two tracks, which increased until the trestles were reached. It was upon this embankment and the succeeding trestles plaintiff had seen the other men proceed. When plaintiff started to follow them, he says, “And in going on the highline I looked east and saw this train bearing down westbound, and with that I stepped on the north track and was standing there with the intention of letting that pass;” that he was then struck by the tender of an engine which was backing eastwardly on the said north track and pulling a train of freight cars, causing the injury sued for — the loss of an arm and severe bruises about the jaw and face-.

The only time plaintiff looked to the west was when he observed his two companions taking that direction. He then saw nothing of the approaching freight train coming eastwardly over the north track, and he never saw that train at any time until it was so close to him that he could only make one step southwardly as he was struck by the tender of the engine. Plaintiff’s exact language is as follows: “The only recollection I have of the train coming in an opposite direction is when it was just about on top of me; then I have just a faint recollection of seeing it and making an effort to jump when it struck me, and that is as far as the recollection goes.” Plaintiff stated that during his employment he had been nearly every day in the defendant’s yards. He stated further, “But it was a known fact to be careful of trains because we had talked about that often.” At the time plaintiff was hit, he testifies he was ten or fifteen feet distant from the curve of the two tracks; that he did not remember whether he could “see around it or not;” that his impression was that the distance between the two tracks where he stood was eight or nine feet. The engineer in charge of the eastbound freight train was a witness for plaintiff, and testified that whilst his train was coming east at a distance of 340 feet he saw two men on the south track; that these men walked east on the south track; that he did see either of them afterwards; that the tank of the tender obscured his view for a certain distance; and that he did not see the plaintiff when he was hit.

Defendant adduced evidence tending to prove that plaintiff was seen by a man who was stationed on the east end of the tender of the engine that was drawing the freight train eastwardly on its north track at a distance of 150 to 250 feet; that he was then standing at a point between the north and south tracks close enough to the north track to he injured if he remained stationary until the freight train reached that point; that the two tracks at that point were ten or eleven feet apart; that when the plaintiff was seen, the whistle blew and the hell was rung; and the plaintiff turned and looked “and stepped into the clear” when the freight train had reached a distance of about seventy-five feet from him; that the plaintiff’s injury was caused from his having run sidewise for some distance apparently to get on the moving train coming west-war dly over the south track, and having moved backwards just as the tender of the eastbound train reached the place where he was.

Another witness for defendant testified that he came over that afternoon with plaintiff on the “plug” train, and that plaintiff proposed to him that they catch the westbound train and ride in it over the south track to the union station; that he warned plaintiff to look out for the freight train coming eastwardly over the north track, which witness called a “drag train;” that plaintiff answered “all right;” that thereupon he went eastwardly and about one hundred feet from plaintiff found an open vestibule and got on the steps' of the westbound train which had been stopped awaiting a signal before proceeding to the station; that it immediately moved westwardly in response to a signal, and as he approached the place where plaintiff was standing he “hollered” to him to look out for the eastbound train on the north track; that plaintiff seemed not to hear him, and he observed plaintiff back towards the eastbound train when it was only three or four feet distant from him; that plaintiff seemed to be looking for the opening of a vestibule door so he could catch the westbound train; that he saw the tender of the eastbound train at the southeast corner when it “knocked him a somersault;” that witness then jumped off the train on which he was riding and went back to the place of the injury.

Defendant requested a peremptory instruction to find in its favor. Defendant also excepted to the ruling of the court excluding its offer to prove that at the point where plaintiff was hurt the distance between the trains was ten or eleven feet, and .that a person could stand safely in that space without being hit by two trains passing him at the same time in opposite directions.

A verdict was rendered for plaintiff for $10,000, from which defendant duly appealed.

OPINION.

I. The questions presented are:, First, the correctness of the action of the trial court in overruling the demurrer to the evidence; second, the correctness of its ruling excluding the testimony as to the width between the two tracks at the point where plaintiff was injured.

If there is material evidence tending to prove a cause of action, although conflicted by other evidence; or if an inference can be legally drawn from -undisputed evidence which tends to prove a cause of action, although a contrary inference might be legally deduced; then the plaintiff has a constitutional right to have the jury decide which of the two conflicting theories of fact shall prevail. This rule marks the line of division between the duty of the court to declare the law and the power of the jury to find the facts. Unless, therefore, a cause of action is unproven, as to its essential elements, either by fact or legal inference, the case must go to the jury.

To solve the question presented by the refusal of the trial court to sustain the demurrer to the evidence, the facts of this case must be analyzed in the light of the rules of law applicable to the evidence and the reasonable inference therefrom.

The laborers employed directly by defendant, and also those employed by any contractor to whom it let work in its yards, were privileged to be on and about its yards and to use the same to the extent implied from their avocations, and for all reasonable and proper purposes of entering and leaving the places where they were at work. The reciprocal duty rested upon such employees to use the yards and tracks of the defendant with due regard of the danger arising from the necessary movement of trains of cars. This danger and the importance of taking care to avoid it was known to the plaintiff, for he so testifies. To him and all others whom it might expect to be in its yards and about its tracks, the defendant owed that degree of care and watchfulness which an ordinarily prudent person would exercise under similar circumstances to prevent injury. Unless there was a failure of this duty and unless such failure was the proximate cause of plaintiff’s-injury, he could not recover, for plaintiff’s action is only predicable on the negligence of defendant; and failing tliat negligence, no cause of action can exist.

We do not understand counsel for plaintiff to deny that the plaintiff had negligently taken a position which exposed him to danger from a train which might be moved eastwardly over the northern track of defendant if he stood there when such train reached the same place; but we understand him to insist that the persons in charge of the eastbound train of defendant either knew, or by reasonable care would have known, that plaintiff had placed himself so near the track over which such train was moving that he would be injured, and that this was or could have been known by due care when the train was at such distance from plaintiff that it could have been stopped by ordinary care before it reached him, and the injury thereby prevented. This theory is based upon the assumed application of the doctrine that the party who has the “last clear chance” to avoid injuring another who is in a position of apparent peril whether negligently or not,'must exercise ordinary care to prevent the injury, or he will be liable on the ground that his failure to exercise such care was the proximate cause of the resulting injury. The liability thus incurred is imposed by law because the injury is inflicted by the subsequent negligence of the person whose moral and legal duty it was to use due care to prevent it. It does not involve the abolition of the rule forbidding a recovery by a party who suffers injury resulting directly from his own contributory negligence. For it is not his negligence but the subsequent negligence of the wrongdoer which the law regards as the proximate and efficient cause of the injury. It is on this ground alone that the rule is sustainable, and it has now become definitely established in the jurisprudence of this State. [Klockenbrink v. Railroad, 172 Mo. l. c. 687; affirmed same case 81 Mo. App. 351, and cases cited. See also subsequent rulings of this court.]

We are utterly unable to find in the facts of this case any room for the application of this doctrine. The plaintiff testified in positive terms that he never at any time prior to the moment when the eastbound train was right upon him saw that train or had any knowledge of its approach. The only other witness called by plaintiff was the engineer of this train, who states that he never saw the plaintiff except at one time; that he observed two men, one of whom might have been plaintiff; that both of these men were on the south track walking east and were not on the track over which his own train was moving. Giving full effect to the testimony of these witnesses, which were all had hy the plaintiff, there is still a complete dearth of any evidence tending to show that plaintiff was seen, or could by ordinary care have been seen, in a position of danger by the persons in charge of the eastbound train. When the two men were seen by the engineer, they were, as far as his train was concerned, in a position of safety, for they were not on its tracks at all. Hence, there is no room for the application of the rule as to the “last clear chance” to be found in the testimony given on plaintiff’s behalf, or upon any inference which could reasonably be drawn from that testimony.

But the plaintiff is entitled to the benefit of the probative force of testimony given on behalf of the defendant, or any legitimate inference arising therefrom. Taking therefore, the testimony given for defendant, and we have two witnesses, one of whom was a lookout placed on the east end of the tender of the locomotive which was drawing the freight train over the north track. This witness testified, that he observed plaintiff in a position of danger at a distance of 150 feet; that the whistle was sounded and the bell rung; that plaintiff looked aronnd and moved, southwardly “into the clear;” that is, to a point where he would he entirely safe; that the plaintiff’s injuries were caused solely by his intent and purpose to catch the train which was moving in the opposite direction on the south track, which was manifested by his running in the same direction of that train in a sidewise way, and afterwards backing over so as to be struck by the southeast corner of the tender going in the opposite direction. ' This testimony was corroborated as to the conduct of plaintiff by another witness. We are unable to see how it affords any basis whatever for the application of the rule relied upon by counsel for respondent. Its entire evidentiary force tends to show that the plaintiff’s negligence or youthful heedlessness directly contributed to his injury, and that his injury was not caused by any later negligence on the part of the defendant, for the testimony of its witnesses discloses no negligence either primary or secondary on the part of the defendant.

Under the testimony given for plaintiff, we can find no legal basis upon which to infer negligence on the part of the defendant. And since the evidence of plaintiff is not helped or aided in any respect by that given for defendant, we are wholly unable to find anywhere in the record a valid reason for the refusal by the trial court of the request made at the end of the whole case, to direct a verdict for defendant.

This renders it unnecessary to consider the error assigned as to the exclusion of testimony tending to prove that the distance between the two tracks rendered it safe for a person standing between them while trains were passing in opposite directions.

As the record in this case discloses a failure to prove the cause of action alleged and affords no intimation that it could be supplied on a new trial, the judgment wall be reversed for the error of the trial court in failing to direct a verdict for defendant; and the cause will not be remanded.

Brown, C., concurs.

PER CURIAM. — The foregoing opinion of Bond, C., is adopted as the opinion of the court.

Graves, P. J., and Woodson, J., concur. Valliant and Lamm, JJ., concur in result in separate opinion by Valliant, J.

SEPARATE CONCURRING OPINION.

VALLIANT, J.

I concur in the result reached by the learned commissioner and in all that is said in the opinion except what is said on the subject of what is therein called the “last clear chance” doctrine and the reason on which it is founded.

There is something in a name, in spite of what has been said to the contrary, and when two names refer to the same subject sometimes the choice between them gives some indication of the meaning intended to be conveyed. When discussing the exception to the rule that precludes a plaintiff from recovering on account of his own contributory negligence in an action founded on the negligence of the defendant, this court-in Kellney v. Railroad, 101 Mo. 67, and in like cases of subsequent date, has usually denominated it the humanitarian doctrine and has justified it on the ground of humanity alone, refusing to apply the general rule of contributory negligence when to do so would excuse a defendant in killing or inflicting an injury which he might have avoided after he discovered the peril in which the plaintiff had placed himself by his own negligence. •

The term “last clear chance” is usually preferred in the arguments of counsel who oppose this doctrine and in those arguments the doctrine is said to rest on the theory of primary and. secondary negligence, that is, conceding that in the beginning the situation of peril was brought about by the concurrent negligence of both plaintiff and defendant, yet if, on discovering the peril, the defendant fails to use ordinary care with the means at hand, to save life, he commits a second act of negligence which results in the killing or injuring of the plaintiff, then the defendant is liable unless the plaintiff, at the instant of the accident, is himself guilty of negligence which then and there contributes with this second act of defendant’s negligence to produce the result, in which event the defendant is not liable. There has never been a case in this court in which the defendant would have been held liable if that were the reason on which the exception in .relation to contributory negligence rested. That has never been the doctrine of this court. That theory was advanced in Holwerson v. Railroad, 157 Mo. 216, but it was not adopted as the opinion of the court.

If a plaintiff chooses his path in the center of a railroad track where he knows a train is liable to come, paying no attention to the situation, and along comes a train, running at a rate of speed forbidden by law, which strikes and injures the plaintiff, nothing more appearing, the plaintiff cannot recover, because his own negligence contributed with that of the defendant to produce the result. But if the engineer saw the plaintiff on the track and realized that he seemed oblivious to his danger, if he could then with the means at hand and by the exercise of ordinary care have aroused the plaintiff from his apparent inattention to the situation or could otherwise have prevented injuring him, but failed to do so, the court would say that such case makes an exception to the general rule in regard to contributory negligence. And sometimes, although the engineer may not have actually seen the plaintiff on the track, yet if he was running his engine through a street of a city where he knew people were likely to be or in the country along a track where he knew people, though not having a right to do so, were liable to be walking, the consequence would be the same. The liability of the railroad company under such circumstances would rest, not on an inquiry as to primary and secondary negligence, hut on an exception to the rule, an exception which the cry of humanity demands.

When an engineer sees a man in peril on the track and can save his life by a mere lifting of his hand he is not excused for failing to do so by the fact that the man was guilty of negligence in going on the track. Humanity revolts at the idea of unnecessarily killing a man merely because he is negligent. That is what this court means when it refuses to apply the general rule of contributory negligence to excuse the killing or crippling of a man in such case, and that is why we call it the humanitarian doctrine. This doctrine is clearly stated in Murphy v. Railroad, 228 Mo. 56.

Lamm, J., concurs in this opinion.