text:
    BORING, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY.
    Division Two,
    March 6, 1906.
    1. NEGLIGENCE: Crossing Street: Not Looking: No Beil: Concurring Negligence. Plaintiff did not slacken his pace or look to see if a car was coming from the east from the time he left the sidewalk at the northeast corner of the intersecting streets and started to cross to the southeast corner until he was struck by a west-bound car, but was looking towards a car which was approaching from the west, and while observing the movement of that car he proceeded to cross and as he reached the north track a west-bound car, running very rapidly, without ringing any bell or giving other signal, struck him just as he saw it. Before leaving the sidewalk he looked east, but saw no car. There was no evidence that the grip-man, by the exercise of due care and diligence, could have stopped the car, after plaintiff left the sidewalk, in time to have avoided the accident. Held, that the court rightly sustained a demurrer to the evidence.
    2. -: Expert Witness: Stopping Train. Where it has not been shown that the witness had, by practical tests and observation, qualified himself to express an opinion as to the distance within which a car could have been stopped without injury to the passengers, the court should not permit him fo testify within what distance one of defendant's cable cars, running at its usual rate of speed, could be stopped.
    Appeal from Jackson Circnit Court . — Eon. Shannon G. Douglass, Judge.
    Affirmed.

      McGluer & Bowling for appellant.
    (1) The court erred in instructing the jury to find the issue for the defendant. Bunyan v. Railroad, 127 Mo. 12; Ennis v. Railroad, 155 Mo. 20; Morgan v. Railroad, 159 Mo. 262; Chamberlain v. Railroad, 133 Mo. 596; Werner v. Railroad, 81 Mo. 368; Fiedler v. Railroad, 107 Mo. 650; Donahue v. Railroad, 91 Mo. 357; Hunlan v. Railroad, 104 Mo. 381; Dunkman v. Railroad, 95 Mo. 244; Cooney v. Railroad, 80 Mo. App. 232; Klockenbrink v. Railroad, 81 Mo. App. 356; Dieter v. Cabareu, 81 Mo. App. 614; Sweeney v. Railroad, 150 Mo. 397; Baird v. Railroad, 146 Mo. 265; Hornstein v. Railroad, 70 S. W. 1104; Schafstette v. Railroad, 74 S. W. 829; Aldrich v. Railroad, 101 Mo. App. 77; Railroad v. Tartl, 39 C. C. A. 568; Turnbull v. Railroad, 120i Fed. 783; Railroad v. Ives, 144 U. S. 408; Murry v. Railroad, 108 Mo. App. 501; Hanheide v. Railroad, 104 Mo. App. 323; Holden v. Railroad, 76 S. W. 978; Septowsky v. Railroad, 76 S. W. 693; Murrell v. Railroad, 105' Mo. App. 88; Hinzman v. Railroad, 182 Mo. 611; Heinzle v. Railroad, 182 Mo. 528. (2) The court erred in refusing to permit witness Hanway to testify as to whether he knew the distance in which the cars could have been stopped, and, if so, in what distance.

      John H. Lucas and Chas. A, Loomis for respondent.
    (1) The court did not err in giving the perenp> tory instruction. Under the evidence plaintiff could not recover. Boyd v. Railroad, 105 Mo. 381; Yan Bach v. Railroad, 171 Mo. 346; Guyer v.. Railroad, 174 Mo. 351; Moore v. Railroad, 176 Mo. 546; McCauley v. Railroad, 179 Mo. 592; Ries v. Railroad, 179 Mo. 7; Roenfeldtv. Railroad, 180Mo. 565; Reno v. Railroad, 180 Mo. 469; Giardina v. Railroad, 185 Mo. 335; Markowitz v. Railroad, 186 Mo. 350; Hite v. Railroad, 130 Mo. 132. (2)- The court did not err in the rejection of evidence, and the cause would not be reversed if such was the fact, as the duty of the trial court would have been the same had the evidence been admitted.
   BURGESS, P. J.

This is an action, for damages alleged to have been sustained by plaintiff by being run against by one of defendant’s cars, on or about the 12th day of November, 1900, in Kansas City, Missouri.

The petition alleges the incorporation of defendant and that it was operating a cable street railway on East Fifteenth street, in said city, and that plaintiff, while attempting to walk across said Fifteenth street, at the junction of Fifteenth and Cherry streets, was run against by one of the street cars operated by the defendant on its Fifteenth street line, and was knocked down, bruised, injured and damaged to the extent of ten thousand dollars, the precise injuries to plaintiff being set forth. The petition further sets forth that when the plaintiff started to cross said street, he looked for cars on said railway, and saw one going east, nearly opposite to where he was attempting to cross, bnt did not see a car coming from the east, and that believing he conld cross the said railway in safety, in front of the east-bound ear, with his face to the west watching the east-bound car, proceeded to walk across said Fifteenth street from a northwest to a southeast direction, and while so Walking across said Fifteenth street with his head so turned to the west, a train from the east on the •defendant’s railway came along said Fifteenth street a short distance to the east of where this plaintiff was so crossing said street, without ringing the bell, or making any effort to notify this plaintiff of the approach of said train, and while this plaintiff was so walking across said street in full view of the gripman operating the car coming from the east, and while the gripman on the said train could plainly see and did see, or by the exercise of ordinary care should have seen him, in time to have sounded an alarm and notified this plaintiff, and in time to have avoided accident by stopping his car. That while the plaintiff had his head turned away from said west-bound car and was unmindful of the same or of its approach, said gripman drove said car along said track at full speed and into and against plaintiff, when said gripman well knew that plaintiff was looking at and watching the east-bound car and was unaware of the approach of the west-bound car; that by the exercise of ordinary care said gripman could have stopped said west-bound car and avoided the injury to plaintiff. That plaintiff had no knowledge of the approach of said westbound train until so short a time before it struck him that it was impossible for him to get out of the way of same, and that the collision occurred at or near the center of the crossing of said Fifteenth street at Cherry street, and that if the defendant had rung the bell or sounded the alarm as said train approached said crossing at Cherry street, the plaintiff’s attention would have been attracted to the approaching of said train in time for him to have gotten off said track before he was struck. That said accident was caused by the carelessness and negligence of defendant’s servants and employees in failing and neglecting to ring the bell or sound an alarm as they approached said crossing, and carelessly and negligently failing to ring a. bell or sound an alarm after said servants and employees saw, or by the exercise of ordinary care should have seen the plaintiff was going onto said track ahead of said train unaware of its approach, and was, without knowing it, placing himself in a dangerous position, and carelessly and negligently failing and refusing to stop or slow up'said car after the said servants saw or by the exercise of ordinary care should have seen that plaintiff, unaware of the approach of said train, was approaching the track and placing himself in a dangerous position, and in carelessly and negligently failing and refusing to stop or slow up the said car in time to prevent injuring plaintiff.

The defenses were a general denial and a plea of contributory négligence.

The salient facts are about as follows:

The defendant was operating a double-track street railway on East Fifteenth street in Kansas City. The cars going east used the south track, and those going west, the north track. Two different lines-were operated over this street by defendant, one known- as the Fifteenth street line, using yellow cars, and running east and west on said street; the other, known as the Holmes street line, using red cars, and running east on said street to Holmes street, and then turning south on Holmes, both lines using the same tracks as far east as Holmes street. The evidence tends to show that the injury of which plaintiff complains took place on November 24th, 1900, where Cherry street, the first street ‘west of Holmes, crossed Fifteenth; that Fifteenth street, from Holmes west to Cherry, is almost level, but at Cherry it ascends quite a little to the next street, Locust; that at a point about half way between Cherry and Locust, and about 150 feet west of Cherry, the east-bound cars would stop to drop the rope, and would then, before starting, ring a bell to attract the attention of a flagman stationed at Holmes street, who would signal when to start; that Cherry street was about 30 or 35 feet wide between the curbing; that Fifteenth street at that place was about 50 feet wide from the curbing and about ten feet from the curbing on either side to the building line; that the tracks of the railway were in the center of the street, the outside rails on each side of each track being about 15 to 18 feet from the curbing; that there were two gas street lights at this crossing at Cherry street, one at the southeast and the other at the southwest corner, making the light such that a man could be seen for a block or more. The above, in relation to the place where the injury happened, is shown by the evidence of Andrew Stone. This witness owned and operated a barber shop at the southeast comer of that crossing, and it was to his shop, a little before eight o ’clock in the evening, that the plaintiff was going when injured. The evidence of the plaintiff showed that he was the janitor of flats at Fourteenth and Holmes streets, and went that evening from the flats to a little bakery on Fifteenth street near Locust, and from there started east, on the north side of Fifteenth street, to go to Stone’s barber shop, and proceeded as far as the sidewalk on the west side of Cherry. Just as he got there, an east-bound car which had stopped to let go the rope and wait for signals, rang its bell and attracted his attention. He looked and saw that car, and then, to use his own language, “I turned and looked the other way, and there was no car coming, and I just came right across there, east on Fifteenth and on to the curb;; I did not go to the curb. I then turned, quartering, you might say, a little east of south, and started to the barber shop. I was watching this car— the east-bound car. I had my head turned to the southwest.” When on the north track a west-bound car struck him, and the blow rendered him unconscious. Plaintiff testified that he never saw the car that injured him until justas he was struck; that the gripman on that car did not ring the bell, and that if it had been rung he would have heard it. He fully described his injuries, which he said were permanent and that one arm was rendered useless for life.

Thomas Hanway testified that he passed over this line at about the time of evening that this injury occurred, and under similar lights and conditions; that one could see a party approaching the car tracks at this crossing, and see the way his head was turned and the way he was looking, at a distance of more than sixty feet.

Mat C. Stone, a witness, testified that when plaintiff was walking south, just before the injury, he was watching the Holmes street car; that plaintiff was within three or four feet of witness when he turned to cross Fifteenth street, and that the west-bound car struck him just after he stepped on the track; that he, witness, did not hear the bell ring before the accident.

At the conclusion of plaintiff’s evidence the court, over the objection and exception of plaintiff, instructed the jury that, under the pleadings and evidence, their verdict must be for the defendant.

Plaintiff insists that the gripman on said westbound car saw, or could have seen him before the car approached within sixty feet of the crossing, and that he saw, or could have seen, that plaintiff Was placing himself unknowingly in a dangerous position, and should have taken measures to avoid injuring him; that the car was going at full speed and gave no warning of its approach, and that as the gripman failed to give such warning, as was his duty to do-, the company is liable.

The evidence shows that the east-bound car, when it first attracted plaintiff’s attention, was standing still at a distance of about half a block west of Mm, between Cherry and Locust streets, and was ringing for a signal from a flagman stationed at the intérsection of Fifteenth and Holmes streets in order to* proceed, and that the distance between said car and the place where plaintiff was injured by the west-bound car was about one hundred and ninety feet. Plaintiff testified that he heard the bell ringing, and knew that the car, before moving, would have to receive a signal from the said flagman, and that the west-bound cars would also have to pass the flagman; that before he left the sidewalk at the corner of Fifteenth and Cherry streets he looked east to see if a car was coming, but saw none, and that he did not look any further for a ear coming from that direction; that he then walked across Cherry street to within a distance of a few feet from the opposite or northeast corner, when he turned south in order to cross Fifteenth street and reach a barber shop on the southeast corner of Fifteenth and Cherry streets; that in the meantime the east-bound car had started down the grade between Cherry and Locust streets and again attracted his attention, and as he was in the act of crossing the other track, or the one nearest him, on the north side of Fifteenth street, he was struck by the westbound .car.

It is not contended that plaintiff was not guilty of negligence in attempting to cross the track, without looking east to see if a car was approacMng on that track, but’that defendant was guilty of negligence concurrently with plaintiff, and that the gripman of the car knew, or by the exercise of proper diligence might have known and observed, that it was plaintiff’s purpose to cross the track in front of the car, and could have stopped the car in time to have avoided the injury. Plaintiff testified that he did not slacken his pace, or look to see if a car was approaching from the east, from the time he left the sidewalk at the northeast corner of Cherry and Fifteenth streets until the moment the car struck him. The distance between the point where he made the turn, at the northeast corner of said streets, and the point where he attempted to cross the track was but comparatively a few feet, and there is no evidence tending to show that the gripman could, by the exercise of due care and diligence, have stopped the car in time to have prevented the accident. ■ The evidence shows that the plaintiff was unobservant, careless of his safety, and walked into danger. There is nothing disclosed by the record which would justify the submission of the cause to the jury.

In a some'what similar case to this (Boyd v. Railroad, 105 Mo. l. c. 380), Brace, J., in speaking for the court, said:

“But it is contended that as the walk on which the deceased was pursuing his way to the depot was in plain view of defendant’s engineer on the locomotive, and the deceased could have been seen upon it, in haste making his way toward the depot, the engineer ought to have commenced checking the speed of his train in time to have permitted the deceased to cross before it in safety. To this position the instructions given in this case furnish a full and complete answer in declarations of law supported by all the authorities, ‘that it was the duty of deceased to look and listen if he could see or hear the train, for the purpose of avoiding injury by it, and, if at any time he might have stopped his progress and avoided injury, then he was guilty of contribT utory negligence;’ and, ‘if the servants of the defendant in charge of its train saw the deceased approaching the track, then they had the right to presume that he would not- attempt to cross the track immediately in front of the train, and to proceed without abating the speed of the train.’ If the instructions had stopped here, the law of the case would have been properly declared on the evidence, which is equivalent to saying there was no evidence to take the case to the jury, and this must be so; for assuming that the engineer saw the deceased from the moment he left the hotel until he arrived within twenty or twenty-five feet of th© track, when it was beyond the power of the engineer to control the speed of the train so as to avoid the collision, what could he have seen? Simply a man of mature age, of quick and active movements, in haste making his way to the depot, on the walk to the crossing, possibly in the rain, wearing a slouch hat, who could stop at any moment; who could see and hear the train; who apparently, and in fact, was in possession of all his mental faculties, and perfect master of his movements; what could the engineer presume, but that such a man, like all other men, having due regard for their own safety, and governed by the ordinary instincts of human nature, would stop before he reached the point of peril patent before him ? Into his mind he could not look and see what was passing there. But not until he actually entered upon the track and attempted to cross before the moving train, and when it was too late for the engineer to do anything to save him, was there anything disclosed in his manner or movement to' lead to the conclusion that he would not act intelligently and rationally, and while yet a safe distance from the approaching train would not stop and permit the train to pass by before attempting to cross, if he found that he could not with safety do so before it. Unless the doctrine of contributory negligence is to be entirely discarded, and engineers required to be such expert psychologists as to be able to read the minds of men, and know beforehand when a man in the possession of all his mental faculties is going to act in a way other than could be expected of an ordinarily prudent man, there was no evidence to take this case to the jury.”

In the case of Van Bach v. Railroad, 171 Mo. l. c. 346, Valliant, J., speaking for the court, says:

“But in this case, what reason had the defendant’s servants to suppose that this man would act as he did? Could they infer that he did not see what was going on before his eyes ? Every one else who was there, including the plaintiff’s witnesses, saw what was being done. Not one of them was in a better position to observe the movements of the train and the cars than the deceased. Conceding that the flagmen ought to have signaled him to stop before he crossed the Wabash tracks, and failed to do so, or conceding that there was no watchman there at all, still if the deceased had used his eyes he would have seen all that the watchman could have called to his attention. It required no expert to understand the situation; it was a matter within common every-day experience in city life. If the employees of defendant saw the deceased approaching the crossing in a slow trot, in full view of the moving cars, had they not every reason to suppose that he would stop when he had driven close to the crossing as was prudent, and wait until the car had passed? That is what the plaintiff’s witness who was going the same direction did, and that is what any reasonable man looking on would suppose any other reasonable man would do. We are referred to Morgan v. Railroad, 159 Mo. 262. But the case at bar is not that of a man walking along the track with his hack to the coming train apparently oblivious to the danger. If this train crew saw the deceased coming and saw that he was in a position where he could not fail to see the car approaching the crossing if he used his sense of seeing, they were not negligent if they assumed that he would act as any reasonable man would for his own protection under like circumstances, and regulated their own actions accordingly.” [Guyer v. Railroad, 174 Mo. 344; Moore v. Railroad, 176 Mo. 528.]

In Roenfeldt v. Railroad, 180 Mo. l. c. 565, Valliant, J., said:

“But the theory of the plaintiff’s case, as shown in his petition, his evidence and the argument in his brief, is that, admitting that the plaintiff through his own negligence put himself in a position of peril, yet the case falls within the exception to the rule that one cannot recover for injuries received in consequence of his own contributory negligence. The exception to the rule is that when the defendant sees (or in some cases when by the exercise of ordinary care he might see) the plaintiff in a position of peril, and, with the means then at hand, is able, by the exercise of ordinary care, to avert the injury, but neglects to do so, he is liable. Under those circumstances the defendant is adjudged guilty of such reckless or wanton disregard of human life or limb that he is not exonerated by showing that the plaintiff was also negligent. Is there anything in the evidence in this case to show such a reckless or wanton disregard of duty on the part of the defendant’s servants in charge of this car? Is there any evidence tending to show that after the motorman or motormen saw the plaintiff in peril they could have stopped the car in time to avert the catastrophe? . . . Plaintiff was guilty of negligence which contributed to his injury and there is nothing in evidence tending to show that the motorman could have stopped the car in time to have prevented the collision after the plaintiff put himself in the position of peril.” See, also, Reno v. Railroad, 180 Mo. 469 ; Giardina v. Railroad, 185 Mo. l. c. 335; Markowitz v. Railroad, 186 Mo. l. c. 350.

It is also iusisted that the court committed error in refusing to allow one Hanway, a witness for plaintiff, to testify as to whether he knew within what distance one of defendant’s cable cars, when running at its usual rate of speed, could be stopped, and if so, to state within what distance it could be stopped without injury to the passengers. The court refused to allow the witness to answer the questions upon the ground that it had not been shown that witness was qualified to express an opinion upon the matter. We think the court properly refused to allow the witness to answer, for the reason that it had not been shown that he had, by practical tests and observation, qualified himself to express an opinion as to the distance within which one of the said cars could he stopped nnder the conditions stated. From our view of the case, whatever might have been elicited from the witness, if allowed to answer the questions, it would not have changed or affected the result.

The facts clearly show that plaintiff’s injury resulted from his own negligence solely, for which‘the defendant should not be held liable.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    MATTHEWS, Appellant, v. FRENCH.
    Division Two,
    March 6, 1906.
    1. QUIETING TITLE: Division Line: Question of Fact. The appellate court will not undertake to settle a conflict in the testimony upon the question of fact, supported by substantial evidence, as to whether the parties claiming an accretion had agreed upon a division line.
    2. DIVISION LINE: Agreement: Husband Acting for Wife: Ratification. Although the husband was not expressly authorized to act for his wife in agreeing upon a division line of lands accreted to those of the adjoining riparian owners, yet if the agreement was made and she subsequently ratified it, the agreement was mutual and was binding on her and her grantees. And her ratification may be shown by the fact that after the division line was agreed upon, she and her husband took possession in accordance therewith and continued to so occupy the land.
    3. -: -: Intervening Claimants. An agreement by riparian owners upon a division line to accretions is not invalidated, in a suit between them or their grantees, by the fact that a third party owned an intervening tract on the original shore, if such third party is not a party to the suit. The title and right to possession of such third party cannot be litigated in a suit between the parties to the agreement or their privies alone, and should not be considered.

      Appeal from Mississippi Circuit Court. — Hon. H. C. Riley, Judge.
    Affirmed.

      Russell <& Beal for appellant.
    ° (1) It is admitted that the land in dispute belongs to the plaintiff unless his grantor, Stephen Bird, gave it away by agreeing to an incorrect division line across the said accretions. (2) We deny that there was in fact ever an agreed line between Bird and Keyser, and both William Keyser and Stephen Bird who it is claimed agreed to this line swear that there was no such an agreement. However, the trial court found against us upon this question of fact. (3) But even if there had been such an agreement, it was not binding between the parties because Althea Keyser, a ma'rried woman, was the owner of the land, and her husband had no right to bind her without proper authority from her. Bigelow on Estoppel (3 Ed.), p. 518; Schenck v. Stumpf, 6 Mo. App. 381. No effort was made to show that William Keyser had any authority to act for his wife in making such an agreement. It requires strong proof to show a husband’s agency over his wife’s property and the unauthorized acts of the husband will not estop her. Eystra. v. Cappelle, 61 Mo. 578; McClean v. Abshire, 72 Mo. App.- 309. (4) An agreed boundary line is only possible where lands adjoin and lay alongside of each other, and then the consideration is what one yields to the other, and is a species of estoppel in pais. Brummell v. Harris, 148 Mo. 422. (5) Such a contract, to be binding between the parties, must be mutual, and if this pretended agreement was not binding as to Mrs. Althea Keyser, it was not binding as to Bird, or the plaintiff, who is his grantee. Hemstead v. Easton, 33 Mo. 142; Schenck v. Stumpf, 6 Mo. App. 381. (6) From the nature of the case it was utterly impossible for the parties to- agree upon and fix a division line, because the undisputed evidence shows that their lands were not adjoining, but that one J. E. Merriman owned a strip of land 125 feet wide between the land of Mrs. Keyser and Stephen Bird. Brummell v. Harris, 148 Mo. 442.

      H. G. 0 ’Bryan for respondent.
   FOX, J.

This cause is here upon appeal by plaintiff from a judgment in the Mississippi Oircuit Court in favor of defendant. This proceeding is predicated upon the provisions of section 650, Revised Statutes 1899, to ascertain and define title to real estate. The petition thus states the cause of action:

“Plaintiff states that he is the owner in fee simple of the following described real estate in Mississippi county,-Missouri, viz: A tract of land bounded as follows : Beginning at a point on the original bank of the Mississippi river one hundred and twenty-five feet south of the north line of section 22, township 27, range 17, running thence sixteen degrees and fifty-three minutes east 3000 feet to the Mississippi river; thence down the river to a point due east of the point of beginning; thence due west to the point of beginning.

“Plaintiff further states that the defendant claims to have title to or an interest in the said described land or real estate, which claim is adverse and hostile to plaintiff’s right.

“Wherefore, the plaintiff prays the court to ascertain and determine the estate, title and interest to the said parties respectively in the real estate and to define and adjudge by its judgment and decree the title, estate and interest of the parties severally, in and to said lands, and plaintiff asks for all other proper relief and for costs. ’ ’

To this petition defendant filed the following answer:

“The defendant for answer to the plaintiff’s petition denies generally each and every allegation therein contained and prays for judgment.

“And for a further answer to said petition the defendant says that the real estate sued for herein is part of an accretion or made land, which accretion is five or six miles in length formed in front of sections 23, 22,14,15 and others. That said land against which and to which said accretion is formed and attached in 1889 belonged to Stephen Bird, Althea Keyser, wife of Capt. Wm. Keyser, Merriman, Sickman and others.

“That said accretion has never been divided and partioned by deed or decree between the several parties entitled to an interest therein. That the land of Stephen Bird, under whom Matthews, the plaintiff in this cause, claims title, lies immediately south and adjoining to the lands of Althea Keyser in section 14, now owned by the defendant.

“That on, to-wit, the 25th March, 1889, said division line being a subject of controversy and to settle same between Stephen Bird acting in his own behalf and Mrs. Althea Keyser represented by her husband and agent, William Keyser, did voluntarily agree upon and fix the division line on said accretion, whereby they and each, Bird and Keyser, then knew and was informed that the line agreed upon was not the true line or where the same would be if the said accretion was equitably divided between all the parties interested therein and they with such knowledge did cause the. county surveyor, Jno. C. O ’Bryan, to run and establish a point up the river 14.89 chains from the intersection of the ancient meander line and then commencing at the corner of fraction section 14 and 23, township 27, range 17, and run a line to the point established in the river, bearing of line being north 52 degrees and 30 seconds east, length of line 7. 68 chains, which the said Bird and Keyser then and there with the information that said line was not the true line yet nevertheless then and there agreed upon and caused said surveyor to make a record thereof as an agreed division line, and that all accreted lands north of said line was to he Keyser’s and that south Bird’s. And ever since then Keyser and French, his grantees have held and used said land, being the same in actual and continued and adverse possession, that the lands sued for in plaintiff’s petition are lying north of said agreed line and under said agreement are the property of the said defendant and hy reason of the said agreement plaintiff, a grantee under Bird, is estopped to now claim the land sued for or dispute the division line agreed upon.”

The replication of plaintiff was a general denial of the new matter alleged in the answer.

The cause was tried hy the court without the aid of a jury. Upon the trial the following agreement as to facts was submitted to the court as part of the evidence in this cause:

“Counsel agree that the plat marked ‘Exhibit A’ is a correct plat showing the land in controversy and it is admitted further that the land between lines marked B and C and the line marked ‘F’ and the river and the section line on the south is the land in dispute. And it is admitted also that this land in controversy being an accretion of the Mississippi river is the property of the plaintiff unless there has been an agreed line between the parties on the line designated ‘F’ on the plat and it is admitted that if it is established hy the proof that the line marked ‘F’ has been made the agreed line between the parties then the title to the property would rest in the defendant. And it is agreed, that the line ‘B and C’ on the south end extends one hundred and twenty-five feet south of the section line. ’ ’

The plat referred to in the agreement was as follows :

PLAT.

Under the agreement submitted in evidence there was only one question in dispute between the parties to this suit, and that was as to whether there was an agreed line as designated on the plat with the letter ‘ ‘ F ” between parties then claiming to own the land as to the accretions which had formed in front of their respective claims. It is unnecessary to set out the testimony in detail upon this sharply contested question as to an agreed line between parties who were then claiming to be the owners of certain accretions which had formed in front of the lands claimed by the parties, who it is said agreed upon a division line. This court would not undertake to settle the conflict in the testimony upon that subject; hence it is sufficient to enable us to determine the legal propositions involved in this case to say that there was testimony both for the plaintiff and defendant tending to prove the assertions made by each of them in respect to this agreed line.

Witnesses Bird and Keyser, who it is charged made the agreement as to the division line, both deny that any such line was agreed upon. On the other hand, John C. O’Bryan, who was the county surveyor for about ten years, testified most positively that Stephen Bird, who is plaintiff’s grantor, and William Keyser, the husband of Mrs. Keyser, authorized him to run the line designated by ‘ ‘ F ” in the plat and that they agreed at the time that such line should be the division line between their lands, and to emphasize his testimony, that such line was agreed upon, they requested him to make a record of it, which he did and such record was introduced in evidence. In addition to this, witness Sickman testifies that O’Bryan surveyed the division line and that it was surveyed to divide the lands of Bird and Keyser. He says that Bird and Keyser had 0 ’Bryan run that line and mark it off and they agreed that north of the line should be Keyser’s and south of the line should be Bird’s and that after the line was established they fenced it and Mrs. Keyser and French have occupied down to the line since that time. French, the defendant, testified that after he bought the land from Mrs. Keyser he did not know there was an agreed line on the premises between Keyser and Bird, but that Bird told him and pointed out the agreed line and he thinks Bird told him that the accretions south of the line were his and those north were Mrs. Keyser’s. The land in dispute is north of the agreed line. Defendant states that he fenced and took possession of this land in 1894 and has been in possession ever since, and that Bird took possession of the land south of the agreed line and fenced it up to the agreed line and ffiade no claim to any part of the land in dispute until there was a new survey made of the accretions in 1896. In addition to this the testimony of Bird and other witnesses tends to show that J. E. Merriman was the owner of a few acres of land in section 22, and that if accretions formed to this land so as to make Merriman the owner of such accretions, then such accretions so formed to the Merriman land would make a small strip of land between the Bird and Keyser land, which would •prevent them-from being adjoining proprietors.

This is a sufficient indication of the testimony to show the basis upon which the trial court rests its judgment for defendant.

At the close of the evidence the plaintiff requested the court to declare the law as follows:

“1. The court declares the law to be that even if there was a division line agreed upon between Stephen Bird and William Keyser the husband of Althea Keyser, who was the owner of the land, such an agreed line would not be binding in this ease, as the proof fails to show that the said.William Keyser had any authority to bind his wife and was therefore not binding upon the said Bird, because the same was not mutual.

“ 2. The court declares the law to be that even if Stephen Bird and William Keyser undertook to establish a division line across the accretions in front of the lands of the said Bird and Althea Keyser, still such an agreement was of no effect unless the lands of the said parties were adjoining, and if the court believes from the evidence that one Merriman owned a strip of land between the land of the said Bird and Althea Keyser then no such agreement undertaking to establish such a division line could be valid or binding and in such case the finding should be for the plaintiff.

‘ ‘ 3. The court declares the law to be that if at the time the accretions now in controversy began to form and did form against the river bank, one J. E,. Merriman or those under whom he holds owned a lot that extended to the river hank, then the said Merriman is entitled to accretions forming in front of his lot in the same proportion to the amount of his river front as other landowners adjoining him.”

Upon the cause being submitted to the court a finding was made in favor of the defendant and decree and judgment entered in accordance with such finding. Plaintiff timely filed motion for new trial, which was by the court overruled and from the judgment rendered in the cause his appeal was in due time and form prosecuted to this court. The record is now before us for review.

OPINION.

It is manifest from this record that the main dispute between the parties to this action is as to the agreed or division line between them, as contended for by the respondent. Upon this question the trial court heard the testimony, had the witnesses before it, and we shall not undertake to retry, upon the disclosures of the record, that question which is purely one of fact.

This leads us to the consideration of the only legal proposition presented by this record,,which is embraced in the contention of' appellant that the court committed error in refusing the declarations of law requested by appellant.

Instruction 1, it will he observed, requested the court to substantially declare the law that the division line, even though agreed upon between Stephen Bird and William Keyser, would not be binding in this court on account of the failure of the testimony to show that William Keyser had any authority from his wife, Althea Keyser, who was the owner of the land, to make such agreement as to the division line. This instruction was properly refused for the reason that it ignores the testimony which tends to show a ratification by Mrs. Keyser of such agreement. William Sickman testifies that after this agreed line was run Mrs. Keyser and French occupied the land in accordance with such agreement. The respondent testifies that the Keysers had fenced this land in accordance with the division line, prior to it being claimed by him. Upon this state of facts, even though Mrs. Keyser did not expressly authorize her husband to make the agreement to the division line between his land and that of Bird, yet after the agreement was made and the division line agreed upon, Mrs. Keyser and her husband acted upon it, took charge of the property in accordance with it, and her acts must be treated as a ratification of the agreement, as well' as an approval of the results of it and was just as effective in making it a binding agreement upon a division line as though she had expressly given the authority to her husband to make such agreement prior to its being made.

We will treat together instructions 2 and 3 refused by the court. They treat of land claimed by Mr. Merriman by reason of being accretions attached to his land on the bank of the river, and they declare the law to be that if these accretions formed a strip of land between the lands owned by Stephen Bird and the Keysers, in that event Bird and Keyser were not adjoining proprietors and such agreement establishing a division line between them was invalid.

The fundamental error of those instructions is that they undertake in this proceeding between plaintiff and defendant to litigate the title and right of possession of J. E. Merriman to certain lands in possession of the defendant, when Merriman is not a party to the action.

It is made manifest from the testimony in this cause that at the time the division line was established, the Keysers and Bird were claiming all these accretions and sought to establish a division line as adjoining proprietors. In fact, Mr. Merriman testifies that respondent now has possession of that strip of land claimed by him.

The judgment in this cause can in no way affect the claim or legal rights of Merriman to the strip of land claimed by him, for the reason that he is no party to this proceeding. This controversy is between the parties to this action, and the question is as to their rights to the property in dispute. If they were claiming these accretions as adjoining proprietors, and made and established a division line that both parties acted upon, as between them, that settled that question, and Mr. Merriman’s rights to the land claimed by him can only be determined in an action where he is made a party, and the issues as to such rights are presented for determination. Merriman’s claim to the strip of land designated in the instructions or its place of location, as between the parties to this action and upon the issues presented in the pleadings, had no place in this controversy and the court properly refused the instructions upon that subject.

As to the establishment of the division line between Bird and Keyser, the conclusions of the court have ample testimony upon which to rest their correctness, and under the well-settled and uniform rulings of this court the finding of the trial court upon the pure question of fact that is supported by at least substantial evidence, should not be disturbed by the appellate court.

Finding no reversible error in the record before us the judgment should be affirmed, and it is so ordered.

All concur.


author: GANTT J.

text:
    CHARLES A. KOENIG et ux. v. UNION DEPOT RAILWAY COMPANY, Appellant.
    Division Two,
    March 6, 1906.
    1. INSANE PERSON: Not in Ward: Power to Sue: Bar. Asuit fo'r damages by parents for the killing of their minor child should not be stopped upon a suggestion and showing to the court that one of them since the suit was brought has become insane and is confined in the county poorhouse, when such parent has not been legally adjudged to be insane. Such insane person may be represented by attorney in the trial of the cause, and especially where the attorney was employed before the party became insane, and a judgment for him is at most only voidable, and the court can after judgment see that the money recovered thereunder is paid over to a lawfully appointed guardian, and otherwise protect defendant from a further prosecution for the same cause of action.
    2. NEGLIGENCE: Street Car: Little Child: No Beil: Not Looking: Second Trial: Uncertain and Indefinite Testimony. Defendant’s motorman did not become aware of the presence on the crossing of plaintiff’s six-year-old little girl until about the time she was run over, but was looking off toward another ■ person. He made no effort to stop the ear or slacken its rapid speed; he did not drop the fender, used no brake, and did not sound the gong or ring the bell, and gave no other signal, and the car ran 125 feet after hitting her. Held, that the weight of the testimony was for the jury, and two juries having found for the plaintiffs, this court will not hold that this testimony on behalf of plaintiffs was so indefinite and uncertain and that of defendant so clear and overwhelming to the contrary that the verdict cannot stand, however contradictory defendant’s testimony may be of that of plaintiffs.
    3. -: Inevitable Accident: Stopping Car. Where there is substantial evidence that the motorman was not looking and that the car could have been stopped in time to have avoided hitting a six-year-old child running towards the track had the motorman been looking, it cannot be said that the killing was an unavoidable accident.
    4. NUMEROUS INSTRUCTIONS. Where the instructions given, when taken together, fully cover every proposition raised by the respective parties, it was not error to refuse others asked. This court has often condemned the practice of giving numerous instructions.

      Appeal from St. Louis County Circuit Court. — Bow. Jno. W. McElhirmey, Judge.
    Affirmed.

      Boyle & Priest and Kiskaddon S Matthews■ for appellant.
    (1) By statute, where a disability is suggested by the adverse party, it is the duty of the court to continue the case until a representative can be brought in. R. S. 1899, secs. 756, 757. (2) It is the duty of a guardian of an insane person to prosecute and defend all actions. R. S. 1899; sec. 3667; Hayes v. Miller, 81 Mo. 424; Reed v. Wilson, 13 Mo. 30. (3) Actions must be brought and prosecuted by the guardian or next friend of a lunatic. Whetstone v. Whetstone, 75 Ala. 495; Dorsheim v. Roosback, 3 C. E. Creen (N. J.) 438; Hayes v. Miller, 81 Mo. 424; Railroad v. Manger, 78 111. 300; Light v. Light, 25 Beav. 248; Reece v. Wilson, 13 Mo. 29; Nelson v. Duncomb, 9 Beav. 211. (4)’ Where judgment is rendered against anyone who is not at the time sui juris, if not void, it is irregular, and erroneous. Therefore, defendant has a right to object to proceedings in a case, when he learns that a plaintiff has become insane. Such plaintiff is incapable of appearing by attorney, cannot make a valid contract, or do any other act requiring the exercise of a sane volition. If the judgment should be against him, he would have a right to repudiate it, or a guardian, if afterwards appointed, could do it in his name and for him. Higgins v. Peltzer, 49 Mo. 157; Latshaw v. McNees, 50 Mo. 381; Powell v. Cott, 13 Mo. 459; Townsend v. Cox, 45 Mo. 401; Cambie v. Dougherty, 71 Mo. 602; Harkness v. Dysart, 36 Mo. 47; Branstetter v. Rives, 34 Mo. 318; Causs v. Hussmann, 22 Mo. App. 115. (5) Insanity is a fact like death, marriage, or infancy. It is not necessary that there should have been an administrator or executor appointed at tbe time of tbe suggestion of tbe death of a party, nor, in like cases, is it necessary that there should have been a guardian appointed for either an infant or insane person. The fact of death, infancy, marriage or insanity being suggested, unless the suggestion is disputed, it would be the duty of the court to issue scire facias to bring in the representative, if there was one, or continue the case, if there was none. If the suggestion should be disputed, then the court, it is conceived, might take evidence of the fact. But, in the case at bar, the fact of the insanity of one plaintiff was brought out by a person assuming to act as such insane person’s attorney, and this was the first information that defendant or its counsel had of the fact. A suggestion was 'then made, and the court was then requested to act on such suggestion. The defendant offered to prove that the plaintiff was hopelessly and incurably insane — had paresis or softening of the brain — but the court overruled the offer, and defendant excepted. (6) The death or insanity of a client revokes the authority of the attorney to appear for him. Hunt v. Rousmanier, 8 Wheat. (U. S.) 174; Bunce v. Gallagher, 5 Blatch. (U. S.) 489; Berry v. Skinner, 30' Md. 567; Matthieser v. McMahon, 38 N. J. L. 537; Hill v. Day, 34 N. J. Eq. 150; Blake v. Garwood, 42 N. J. Eq. 276; Wallace v. Manhattan, 2 Hall (N. Y.) 495; Prior v. Kiso, 96 Mo. 314. (7) The plaintiff being insane, no proceeding could bind him unless he or his guardian elected that it should. Suppose the verdict had been against him — he, or his guardian, would have the right to say that the action never abated, and at any time come into court and, by proceeding in the nature of a writ of error coram nobis, have the judgment set aside, and the case tried again. Toney- ex parte, 11 Mo. 663; Lashaw v. McNees, 50 Mo. 384; Powell v. Gott, 13 Mo. 460; Walker v. Deaver, 79' Mo. 674; Gray ex parte, 77 Mo. 160; Craig v. Smith, 65 Mo. 536. (8) Instruction 14 asked by defendant, and refused by the court, ought to have been given. In that instruction defendant left it to the jury to find if it were a fact that defendant’s motorman kept watch and ■sounded his gong. In addition to that it was left to the jury to find under the facts as they were disclosed, whether deceased was in danger for such time as to become apparent, so that the motorman hy ordinary care might have avoided the accident.

      Lee Meriwether for respondents.
    (1) The greater part of appellant’s brief is devoted to an earnest, if not unselfish, appeal to this honorable court to protect the rights of one of the respondents, whom appellant alleges to be insane. In what manner is he to be protected? Why, by depriving him ■of a judgment for $5,0001 No matter that respondent ■Charles Koenig employed counsel in the outset, no matter that counsel obtained for his client all that he asked, and all that was due him; if, between the time of his retaining counsel and the rendering of full judgment in his favor, respondent became insane, then, in justice to said respondent, his judgment must he annulled so as to afford opportunity for his suit to be brought by an attorney appointed for him, instead of by the attorney selected by respondent himself. Where a litigant becomes insane a court may properly interfere to safe-guard the moneys awarded him; a novel theory, however, to “safe-guard” an unfortunate litigant by taking away what a court and jury have awarded him for the sole purpose of -giving him — what? Why, the blessed right ■of bringing his suit all over again, by another lawyer. But, assuming that appellant’s keen regard for the rights of an insane respondent should be satisfied in the manner indicated (by depriving such respondent •of the judgment awarded him) — what ground is there for assuming the insanity of Charles A. Koenig? Can •a mere “suggestion” suffice to stop- a suit or rob a litigant of the fruits of a legal victory? Like innocence, sanity is assumed until the contrary be proved. And the law provides the method for establishing a citizen’s insanity. No mere “suggestion,” nay, not even the positive opinion of doctors and surgeons is permitted to constitute prima facie evidence of insanity. Appellant cites section 756, Revised Statutes 1899; as showing that it is the duty of a court to continue a case where disability is suggested; the language of the statute is, that the court may (not shall) continue the case. Appellant urges that the insanity of a client revokes the authority of the attorney to appear for him. The client, through guardian properly appointed, may dispute the attorney’s right further to appear for him, but there is nothing in the cases cited by appellant to show that the adverse party may dispute attorney’s right. Prior v. Kiso, 96 Mo. 303. In the case at bar there is a judgment to overthrow, and it is not the client who disputes the attorney’s authority. (2) Concerning appellant’s criticism of the instructions, it need only be said that the instructions were framed in accordance with the opinion of this court handed down in the October term of 1902 (173 Mo. 698).
   GANTT J.

This is the second appeal of this cause. The first is reported in 173 Mo. 698. The evidence is fully stated in the opinion of Judge Burgess on the former appeal, and it is unnecessary to reproduce it in full. The plaintiffs are respectively father and mother of Amelia Koenig, their infant daughter, who was struck and killed on the 8th day of May, 1899; by one of defendant’s street railway cars at the intersection of Arsenal street and Compton avenue, in the city of St. Louis. Amelia was about six years old at the time she was killed. The defendant is a corporation organized under the laws of this State, and operating a street railway with double tracks on Arsenal street. Its cars are propelled by electricity. On the 8th day of May, 1899, between two and three o’clock in the afternoon of that day, one of the defendant’s ears proceeding westward on Arsenal street, struck Amelia, at or near the crossing of the west line of Compton avenue, with such force that she died a.n hour or two thereáfter. The testimony tended to show that from Michigan avenue, the first street ea.st of Compton, down to Compton there was a steep descending grade in defendant’s railway track. The negligence alleged was that the defendant recklessly and negligently ran its car with great speed in excess of the ordinance of the city of St. Louis regulating the speed and operation of street railway cars, and in violation of said ordinance and with such rapidity that the motorman lost control thereof so that he could not stop the same at the crossing on Compton avenue; that while running down said grade to Compton avenue, the motorman neglected and failed to sound the gong or bell on said ear, or to give any other warning of its approach, and failed and neglected to keep a proper lookout for persons crossing said Arsenal street at Compton avenue, and neglected to lower the fender and apply the brake until after said Amelia had been struck. The answer was a general denial. A change of venue was granted to the St. Louis County Circuit Court. After the reversal of the judgment on the first trial by this court, the cause was retried at the May term, 1903, of said court, and resulted in a verdict for the plaintiff in the sum of five thousand dollars. Motions for new trial and in arrest were filed in due time and overruled, and an appeal granted to this court. Various errors are assigned on this appeal which will be considered in the order of their presentation in the brief of counsel for the defendant.

I. In the course of the examination of Mrs. Lizzie Koenig, the mother of Amelia Koenig, she was asked: “Where is your husband, Charles Koenig?” and she answered, “He is out of Ms mind and is at the poorhouse. On the 29th of August he will have been there two years.” On cross-examination she was asked if any jury was éver impaneled to find out whether he was insane, and she answered that there had not been. At this point in the trial, counsel for the defendant objected to proceeding further with the case on the ground that the parties would not be hound by any judgment rendered; that plaintiff being insane, plaintiff’s counsel had no authority to appear for him; that he ought to have a guardian to represent him. The court overruled this objection, and the defendant excepted. Afterwards on the same day, the defendant’s counsel made the following suggestion: “I desire to state to the court at this stage of the case — I desire to have the record show —that after the jury was impaneled and sworn, and while the first witness was on the stand testifying for the plaintiff, for the first time it came to the knowledge of the defendant and its agent that the plaintiff, Charles A. Koenig, was insane, and the defendant now makes the suggestion to the court that the plaintiff Charles A. Koenig is insane and suggests to the court such insanity, and asks that the trial of the case he suspended until such time as a guardian of the insane person can he appointed to represent him in court, and we object to proceeding any further with the trial of the case. ’ ’ The court refused to suspend the trial of the case and ordered the trial to proceed, 'whereupon the defendant excepted. After the plaintiffs had introduced their evidence in chief, the defendant put Dr. Erbon on the stand and offered to prove by him that Charles A. Koenig, one of the plaintiffs, was hopelessly and mcurably insane, and had been for two years. To this evidence the defendant objected as not pertinent to any issue in the case and the circuit court sustained the objection and defendant excepted. In its motion for new trial, the defendant assigned this action of the court as ground for a new trial, and it was overruled.

It is conceded that no inquest into the mental condition of Charles A. Koenig had ever been held and that he has not been adjudged insane by any court,of competent jurisdiction. The question now is, did the circuit court err in proceeding with the trial after the suggestion of insanity was made as above stated? At common law it is stated by Lord Coke in Beverly’s case, 4 Coke 125 a.: An idiot in an action brought against him shall appear in proper person, and he who pleads best for him shall be admitted as appears in 33 H. 6. 18 b. Ctherwise it is of him who becomes non compos mentis, for he shall appear by guardian if he is within age, and by attorney if he is of full age. ’ ’ In Rock v. Slade, 7 Bowling’s Practice Cases, 22, an action was brought in the name of the plaintiff who was a lunatic, by his wife, to recover money. The defendant’s attorney asked for a rule on the plaintiff’s attorney to show by what authority the action was brought. Coleridge, judge on the circuit, was of opinion that under the circumstances the plaintiff’s wife had an implied authority to bring the action, and he ordered that the amount of the debt should be paid into court, and proceedings stayed until further order. On motion for a rule to show cause why the money paid into court should not be paid to .the wife of the plaintiff, it was contended by the attorney for the defendant that the appointment of an attorney presumes mental power upon the part of the individual making it, which a lunatic is incapable of exercising, and that if the rule should be absolute, the defendant would have no protection" against future action at the suit of the plaintiff. Lord Abinger said: “ It is everyday practice to sue in the name of a lunatic, and I never heard any question as to the propriety of such action where no committee was appointed. If we were to compel a party to go into equity for the appointment of á committee, there are many instances in which a lunatic might starve before he could recover his money. If the defendant wants the protection of this court, he should let the plaintiff obtain judgment. ’ ’ Chitty in his Pleading, vol. 1, 577, adopts the statement of Lord Coke above noted. In Allen v. Ransom, 44 Mo. 263, in an action of ejectment, Judge Bliss, in the course of the opinion, said: “The claim of the plaintiff seems to have been sharply contested, and various questions were sprung upon him. First, as the case was called for trial, the defendant filed a paper suggesting to the court ‘that the plaintiff was insane, ’ to which suggestion the court paid but little attention, and directed the trial to proceed, and defendant excepted. I do not see precisely the object of the suggestion, nor does the record intimate it. Even if the suggestion was true, which does not appear, the suit must proceed in the name of the plaintiff, and he might all the more require for his support the possession of his property,” citing 2 Saunders Pl. and Ev., 318; Reed v. Wilson, 13 Mo. 28. In Reed v. Wilson, it was held that a suit on behalf of a lunatic must be instituted in the name of the lunatic and not in the name of the guardian, and that was an action of replevin for slaves and other personal property. Since the admission of Missouri into the Union as a State, there has always been a statute making it the duty of every guardian of an insane person to prosecute and defend all actions instituted in behalf of or against his ward, and where there has been an inquest and a party adjudged insane, and a guardian has been appointed and qualified as such, there can he no doubt it is his duty to prosecute and defend all actions instituted in behalf of or against his ward. But it is obvious that this statute, now section 3667, Revised Statutes 1899, makes no provision for a case like the one before us, where no inquest has been held and there has been no adjudication of insanity. Inasmuch as at common law an insane person could appeal by attorney and as there had been no inquest found in the case of the plaintiff Charles A. Koenig, we think the circuit court properly declined to stop the trial upon the suggestion of the defendant. Such was the ruling in Allen v. Ransom, supra, and we have no doubt whatever that the judgment in tbe case will be ample protection to the defendant from another action for the same cause. In this State a deed of conveyance of real estate by an insane person before inquest is not void but voidable only. [McAnaw v. Tiffin, 143 Mo. 678; Jamison v. Culligan, 151 Mo. 416; McKenzie v. Donnell, 151 Mo. 454; Blount v. Spratt, 113 Mo. 55.] If the solemn conveyances and contracts of an insane person, not in ward, are not void but voidable only, upon equitable terms, we see no reason why a. contract' of employment of an attorney to bring an action should be held void. Clearly if not void, it does not lie in the mouth of the defendant to make any objection to the retainer of counsel by the plaintiff Charles A. Koenig, especially as he employed the counsel who appeared for him when he was sane and when he obtained the first judgment in this cause in the circuit court. The circuit court, as indicated by Lord Abinger, by proper orders can protect the defendant in seeing that whatever fund is recovered is paid over to a lawfully appointed and qualified guardian.

II. It is next insisted that the plaintiffs’ verdict rest-s upon such indefinite and such uncertain testimony, and the evidence on behalf of the defendant is so clear and overwhelming to the contrary that the circuit court should have taken the case from the jury at the close of the whole case. "When this case was before this court before on practically tbe same testimony, it was said: “It is clear from the evidence that defendant’s motorman did not become aware of the danger of the child until the time of, or after she had been run over by the cars.” [Koenig v. Railroad, 173 Mo. l. c. 724.] The testimony on behalf of plaintiffs was to the effect that at the time defendant’s car struck the little girl, the motorman in charge was looking off toward the witness Dashman, and did not see her in the street. The testimony further shows that up to the time he struck the child, he made no effort whatever to stop the car or slacken its speed; he did not drop- the fender, he used no brake prior to hitting the child, but struck her while going at a good speed; no gong or other signal or warning was given by the defendant’s servants to indicate that his car was approaching, and after striking the little girl the car ran 125 feet before it stopped. There was evidence that it did not stop until it came to the first house beyond Compton avenue, and that that house was 150 feet from the avenue crossing. The weight of this testimony was for the jury, that saw the witnesses and heard them testify, to determine. Two juries have credited the plaintiffs ’ evidence and it is too well settled in this State to require a citation of authorities, that under such circumstances this court will hot interfere with the verdict of the jury, although there may be contradictory evidence.

III. It is conceded by counsel in their brief and argument that the little girl Amelia was of such tender years that she was incapable of. contributory negligence and therefore no such defense as that is interposed in this case, but it is insisted that it was an inevitable accident, for which the defendant should not be held liable. The motorman testified that when the little girl made the start from the sidewalk to cross the tracks, his car was fifty feet away from her, and his car was moving at a rate of only eight to ten miles an hour, and it was impossible for him to stop his car in less than 60 feet. On the other hand, Harvey O. Montgomery testified that he had had experience as a motorman in operating a street car for the Suburban Railroad, and was ■familiar with the size and construction of the defendant’s street cars on Arsenal street, and that one of those cars running at the rate of 10 or 12 miles an hour on a grade descending from three to three and a half feet, for a distance of three blocks, on a dry track, on a clear day, could reasonably be stopped with the brakes within 60 feet, but that in an emergency by using the reverse power such car as described, in the same conditions, could be stopped in forty feet, and such a car going only 8 miles an hour, in the same conditions, could be stopped by using the reverse power in 25 feet, and that he had often made stops of that sort when running at only 8 miles an hour. If Montgomery’s testimony was true, and it was for the jury to say whether or not they believed him, it is plain that if the motorman in charge of defendant’s car which struck the little girl had been keeping a vigilant lookout, he could have seen the child starting directly in front of his car 50' feet away, and if he had applied the power at his command as directed by the ordinance, he could have averted the injury to the little girl after he saw the danger she was in.

IV. Defendant complains of the refusal to give the 14th instruction asked by the defendant. It is obvious that there was no error in the refusal of this instruction for the reason that the court limited the plaintiffs ’ right to recovery to the two specifications of negligence in the petition, which charged that the servants in charge of the said car failed to sound the bell or give other warning of the approach thereof, and failed to keep a proper lookout for persons crossing Arsenal street at Compton avenue on the occasion of the injury, and only held the defendant liable for failure to observe ordinary care, and then gave the 5th instruction in words as follows: ‘ ‘ If you believe and find from the evidence that the said Amelia Kgenig was at the north sidewalk of Arsenal street when defendant’s car was crossing Compton avenue, and she then suddenly started from her position at the sidewalk to cross Arsenal street and without regard to her own safety, or without looking for or seeing the car, ran into the same and that such conduct on her part was the sole cause of her injury and death without any negligence or want of ordinary care on the part of the motorman in charge of the car cansing or contributing to such injury and death, then you should find for the defendant. ” And in the 7th instruction directed the jury: “If you believe and find from the evidence that the injury and death of the said Amelia Koenig were the result of mere accident or misadventure without the fault or negligence of anyone, then you should find for the defendant.” The court also defined “ordinary care” as has often been approved by this court. This court has often criticised the giving of numerous instructions and has admonished the trial courts that a few plain instructions covering all the issues in a case are all that should be given and it is plain that taking the instructions together they fully cover every proposition raised by the respective parties which were necessary to direct the jury in arriving at their verdict. The cause was tried in accordance with the views expressed by this court on the former appeal, and we find no reversible error in the record. The judgment is affirmed.

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


author: BURGESS, P. J.

text:
    HOKE et al., Appellants, v. CENTRAL TOWNSHIP FARMERS’ CLUB et al.
    Division Two,
    March 6, 1906.
    1. INSTRUCTIONS: Motion for New Trial. Unless the attention of the court was called in the motion for new trial to its action in giving certain instructions and refusing others, any error in the instructions given or in refusing those asked but not given, will not be considered on appeal.
    2. LIMITATIONS: Entry: Meaningless Statute. Section 4263, Revised Statutes 1899, provides that “no entry upon lands, tenements or hereditaments shall he sufficient or valid as a claim, unless an action be commenced thereon within one year1 after the making of such entry, and within ten years from the time when the right to make such entry descended or accrued.” Reid, that, as applicable to the limitation of ten years, this section is meaningless, and fails to provide any new or additional remedy, and the limitation is neither extended nor abridged thereby.
    3. -: Trustees of Church: Date of Deed. Where the trustees of a church sold and conveyed property, limited by the grant to them to church uses,to one of their number, and thereby the condition was broken, and he sold it to the defendants by a deed dated more than ten years prior to the bringing of the suit by the original grantor’s heirs, and those heirs did not during those ten years by some unequivocal act assert a right to the land, or otherwise declare a forfeiture, their suit in ejectment is barred.
    4. -: -: Forfeiture: Reclamation. Conditions subsequent are not favored in the law and are construed in favor of- the grantee. And where land was deeded to trustees for church uses and afterwards sold to a private citizen, the grantor must by some positive act, either by bringing suit or otherwise, manifest his intention to reclaim the property. And. if he does not do that within ten years, his suit is barred.
    Appeal from St. Louis County Circuit Court. — Hon. Jno. W. McElMnney, Judge.
    Affirmed.

      J. P. Vastine for appellants.
    Before tlie court permits the loss of land through mere possession, a technicality, the law should he rigidly applied. Huckshoon v. Hartwig, 81 Mo. 648. James Miller became trustee under deed of Hoke in 1852, and continued such to September, 1892, and a trustee of the church to November 14, 1895. The possession by Miller and defendants prior to suit was over ten years, and the question arises, should Miller’s holding for one year be counted, and was it adverse? Respondents held realty less than ten years. The deed of Hoke was made to- James Miller et al., trustees. To enable a trustee, without giving up the possession, to-turn it into an adverse holding, against the cestui que trust, the evidence must be clear and unmistakable, and such adverse claim must be brought home to him beyond question or doubt, not theoretically or constructively, but actually. Goodwin v. Goodwin, 69’ Mo. 617 Bender v. Zimmerman, 80 Mo. App. 144; Hill on Trustees, p. 264. The relation of trust is presumed to continue until open and pronounced hostility thereto. Hunnewell v. Adams, 153 Mo. 440 ,- McGuire v. Nugent, 108 Mo. 161; Gordon v. Eans, 97 Mo. 603; Wilson v. Lerche, 90 Mo. 473; Bent v. Priest, 86 Mo. 475; Keelon’s Heirs v. Keelon, Admr., 20 Mo. 530. Possession obtained through fiduciary relation, change of possession from a friendly to an adverse one, must be brought to knowledge of real owner. Tuggles v. Calteson, 143 Mo. 530; Hamilton v. Boggess, 63 Mo. 233; Comstock v. Eastwood, 108 Mo. 41; Budd v. Collins, 69' Mo. 129; Wilkerson v. Thompson, 82 Mo. 317; Gordon v. Eans, 97 Mo. 603; Morey v. Staley, 54 Mo. 419. Miller took realty as purchaser, with notice of title in another, and he held it as trustee for such other. Truesdell v. Callaway, 6 Mo. 605; Bailey v. Winn, 101 Mo. 649.

      Blodgett & Davis for respondents.
    (1) Conditions subsequent are construed strictly, and the title remains in the grantee until re-entry by the grantor. Ellis v. Kyger, 90 Mo. 600;; O ’Brien v. Wag-goner, 94 Mo. 93; Historical Society v. Academy of Science, 94 Mo'. 459; Rudick v. Railroad, 116 Mo. 25; Morrill v. Railroad, 96 Mo. 174; Rush v. Railroad, 97 U. S. 693; Crane v. Hyde Park, 135 Mass. 149; Church v. Grant, 3 Gray (Mass.) 142. (2) Right of entry is a chose in action. The grantor has no estate in land after conditions subsequent are broken. Nothing more than right of entry, which is merely a right or chose in action. De Peyster v. Michael, 6 N. T. 506; Nicoll v. Railroad, 12 N. Y. 121; 2 'Washburn on Real Property, see. 954, p. 16; Tiedeman on Real Property, p. 233; Schulenberg v. Harrison, 21 Wall. (88 U. S.) 44; 1 Coke Litt., 218; Upington v. Corrigan, 151 N. Y. 143; Upington v. Corrigan, 29 N. Y. Supp. 1002. (3) (a) The condition was broken in 1875, at the sale of a portion to the railroad, the cause of action then accrued. Guild v. Richards, 16 Gray (Mass.) 326; Railroad v. Cook, 98 Fed. 281; (b) It certainly accrued at a sale of the rest in 1891 to James Miller, and a mere failure to re-enter within ten years is a complete bar. Sec. 4263, R. S. 1899; Phoenix v. Commissioners, 12 How. Pr. 1; Railroad v. Cook, 98 Fed. 281; Bradley v. West, 60 Mo. 41; Littleton v. Patterson, 32 Mo. 365; Powers v. Railroad, 158 Mo. 87. (c) The adverse possession of defendants and their grantors, in good faith and under color of title, is a bar. Sec. 4262, R. S. 1899; Kincheloe v. Tracewells, 11 Gratt. 587. (d) Possession of-a part is possession of the whole, under color of title and in good faith. Sec. 4266, R. S. 1899. (4) (a) The strongest equity may be forfeited by laches or abandoned by acquiescence. Swift v. Smith, 79 Fed. 709 ; Sullivan v. Railroad, 94 U. S. 806; Railroad v. Cook, 98 Fed. 281 •. (b) A mere right to enforce a forfeiture, which is never favored in law, may be forfeited or waived in the same way. 1 Warvelle, Vendors, see. 446; Ludlow v. Railroad, 12 Barb. 445; Jones v. McLain, 41 S. W. 151; Kenner v. Contract Co., 9 Bush. (Ky.) 202; Coon v. Bricket, 2 N. H. 163; 2 Washburn, Real Property, sec. .18. (c) Defendants and their grantor had the right to rely upon the deed of 1875 to the railroad as a waiver of the condition. Guild v. Richards, 82 Mass. (16 Gray) 309; Ludlow v. Railroad, 12 Barb. 440. (5) Where the property is not a donation for a charity, and where the consideration clause of the deed expresses solely a money consideration, there can never be a reverter. McRoberts v. Moudy, 19 Mo. App. 26; Gibson v. Armstrong, 9 B. Monroe (Ky.) 489; Church v. Mott, 52 Am. Dec. 613. (6) The church cannot acquire property upon a valuable consideration and then place.it beyond the reach of creditors. Magie v. Church, 13 N. J. Eq. 77; Bushong v. Taylor, 82 Mo. 660 ,- Mills v. Davidson, 35 L. R. A. 113. (7) The deed to Hoke wisely provides that the property be used according to the rules and discipline that may, from time to time, be agreed upon and adopted at the general conference. The discipline gave the trustee authority to sell upon certain conditions and for certain purposes. The conditions and purposes were strictly carried out. Good v. McPherson, 51 Mo. 126; Bushong v. Taylor, 82 Mo. 760; Academy v. Clements, 50 Mo. 167.
   BURGESS, P. J.

This is an action of ejectment by the heirs of Thomas Hoke, deceased, against the defendants for the possession of the following described tract of land situated in St. Louis county, to-wit: commencing at a stone on the dividing line between United States surveys 2684 and 2775 in and on the north edge of the St. Charles macadamized road, in the line dividing the land of John B. Cavender (formerly his) and Thomas Hoke (formerly his), thence north 435 feet to a stake, thence south 33 degrees 31 seconds west, 363 feet to a stone, in the north line of the St. Charles road, thence south 56 degrees 31 seconds east with the north line of said road 240 feet to the place of beginning, containing one acre.

Ouster is laid January 1,1893. The defenses were a general denial, the ten-year Statute of Limitations, waiver of the conditions in the deeds under which defendants derived title, and laches upon the part of plaintiffs in asserting their title to said land.

The cause was tried by the court, a jury being waived. The trial resulted in a judgment for defendants, from which plaintiffs, after an unavailing motion for a new trial, appeal.

The plaintiffs are the lawful heirs of Thomas Hoke, who, by his warranty deed of date August 3, 1852, and duly recorded August 12,1858, conveyed one acre of land, located on the St. Charles Rock Road ini St. Louis county, to the trustees of the Methodist Episcopal Church South, for the consideration of one hundred dollars, in trust, that they shall erect and build, or cause to be erected and built, thereon a house or place of worship and parsonage for the minister in charge of said church, for the use of the members of the Methodist Episcopal Church South, and to revert to the party of the first part if used for any other purpose, according to the rules and discipline which, from time to time, may be agreed upon and adopted by the ministers and preachers of the said church and their General Conference; that about the time of acquiring the property from the said Hoke the trustees also acquired one acre from John B. Camden, immediately back of and adjoining the Hoke acre; that later on, about the year of 1876, the said trustees acquired a one-half acre from Wesley Browning, immediately back of and adjoining the Camden acre; that by deed, dated in December, 1875, and recorded the same month, the trustees of the said church, by their warranty deed, conveyed a portion of the property, namely, a strip of the southwest corner, to the St Louis, Kansas City and Northern Railroad Company for the purpose of using it as a roadbed of their railroad. That on the first day of June, 1891, the trustees of said church, by their warranty deed, conveyed the remaining portion of the Hoke acre, the Camden acre and the one-half acre acquired from Wesley Browning to James Miller for three thousand dollars, for the purpose of erecting and building the house of worship on a lot about one mile distant from the original site, which was in a more convenient locality, and because they could not support the church and minister in that situation on account of the lack of members. That the church discipline, at the time of the sale, was as follows: The trustees, with the consent of the preacher in charge and the Quarterly Conference, shall have power to sell any church or parsonage property which has grown out of use or which should be removed to another place, the proceeds of which shall be invested in other property at the direction of the Quarterly Conference. The minister expressed his consent in writing, the consent of the Quarterly Conference was also so expressed, the proceeds were used for building a new church. The whole membership of the church was transferred with each one’s consent. James Miller exercised acts of ownership over the property by improving the house, trimming trees, repairing fences, repairing sheds, cutting grass and fixing the road.

On September the 1st, 1892, James Miller sold the property to the Central Township Farmers’ Club, the ■defendant in this case, who immediately took possession and claimed the property as their own, made costly improvements on their house, built new sheds and new fences, constructed a gravel road and walk from the rock road to the house around it, have planted trees, cut the grass and have exercised general authority and acts ■of ownership, claiming it as their own in good faith and under color of title; that they have paid the taxes, together with James Miller, since June the 1st, 1891; that at no time until the. date of the present suit — April the 18th, 1902 — have the plaintiffs demanded the property or made any entry thereon.

At the instance of the plaintiff, the court declared the law to be as follows:

“The court declares the law to be that the defendants, to establish their defense of title from possession, must show that they and those from whom they derived title held the land in suit continuously, exclusively and adversely for ten years prior to 18 April, 1902, date of filing suit herein, against the plaintiffs, and the mere possession thereof for ten years is not sufficient. ’ ’

Over the objections and exceptions of plaintiffs, the court refused to declare the law to be as follows:

“The court instructs that if Jas. Miller was trustee •of the Methodist Episcopal Church at and from the time he bought the land in suit to his sale thereof to defendant Club and he failed to notify the heirs of 'Thomas Hoke, deceased, that he claimed title to said land or gave them some certain distinct notice that he held said land adversely to them, then such period of time is not to be counted as. a part of the ten years the defendants must show they held the land adversely .and continuously to defeat plaintiffs ’ claim.

“The court instructs that, on the pleadings and •evidence, plaintiffs are entitled to recover.”

The court, of its own motion, gave the following ■declaration of law:

“1. If the court should find from the evidence that the Methodist Episcopal Church South, by and pursuant to order or vote of its General Conference, acting in accordance with its rules and discipline, abandoned the use of the property in question as a house •or place of worship and parsonage, and removed to another church site, and caused the said property with •other property used in connection therewith to be conveyed by deed by the trustees holding the title, to James Miller, absolutely and free from any trust, for the consideration of $3,000, and said church applied the same towards the purchase of such other site or the erection of another church building on said new •site and thereupon turned the exclusive possession of said premises over to said James Miller under his said conveyance, and he thereupon caused his said deed to be duly recorded and took such exclusive possession and removed the church furniture therefrom and exercised all the usual acts of ownership over and upon said property, claiming the exclusive ownership thereof; and all of said acts were done as aforesaid prior to March 14th, 1892, then such acts may be taken into consideration in connection with all the evidence in the case in determining whether or not there was a breach of the condition in the deed to "Woodson and others as trustees, and' if so when such breach occurred. And from the above facts, if the court believe' the same to be established, the court may find that there was such breach and that it occurred prior to March 14, 1892.

‘ ‘ But to constitute such breach the court may find and determine from the evidence that the trustees holding the title to said property by their acts and conduct clearly manifested their intention no longer to comply with said condition, and disavowed the obligation to perform said condition, and intentionally appropriated and applied said property to uses clearly inconsistent with said condition and prohibited thereby-

“2. Although the court should find that there was a breach of the condition in the deed from Thomas Hoke to the church trustees, by reason of which the heirs of Thomas Hoke became entitled to demand and sue for possession of' the property in controversy, yet if the court should further find and believe from the evidence that, after such breach and before the commencement of this suit, James Miller and the defendant corporation as his grantee, under their deeds read in' evidence, held open, notorious and exclusive possession of said property, continuously, for a period of ten years, claiming exclusive ownership thereof under said deeds, adversely to all the world, then the court should find for the defendants.”

To the giving of said declarations of law the plaintiffs excepted at the time.

While the plaintiffs objected and excepted to the above declarations of law given by the court of its. own motion, as well as to the action of the court in refusing other declarations of law requested by them, the attention of the court was not called to these matters in the motion for new trial, and they cannot, therefore, be considered upon this appeal. [State v. Pyscher, 179 Mo. 140.]

The record discloses that James Miller acquired title to the property in question under the Hoke deed. By stipulations between the parties, entered into at the time of the trial, it is admitted and agreed that plaintiffs claim title to the land under the Miller deed to the Club, dated June 1, 1891, and recorded September 23, 1892, and that the defendants have been in actual possession of the land and using it for club purposes since 1892.

Plaintiffs contend that James Miller became the trustee under the Hoke deed in 1852, and continued as such until September, 1892, and trustee of the church until November 14,1895. On the other hand, defendants contend that the condition in the Hoke deed was broken on the first day of June, 1891, when the trustees of said church, by warranty deed, conveyed the remaining part of said land to James Miller. Section 4263, Revised Statutes 1899, provides that “no entry upon any lands, tenements or hereditaments shall be sufficient or valid as a claim, unless an action be commenced thereon within one year after the making of such entry, and within ten years from the time when the right to make such entry descended or accrued.” In passing upon this section of the statutes, in Bradley v. West, 60 Mo. l. c. 41, the court said: “This section is the same as it existed under the previous statute; and, as applicable to the limitations of ten years, it is meaningless and fails to provide any new or additional remedy. Whilst it declares that an action may be brought within one year after an entry is made, yet it abridges or limits the time to within ten years from the time when the right to make such entry descended or accrued. As the right to make the entry existed as soon as a cause of action arose in consequence of an adverse holding, the limitation is not in the least extended. The intention was doubtless different, but the statute is thus written.” So that, whether entry for condition broken be made under the statute, or as at common law. it must be done by some positive, unequivocal act, as by bringing suit or by doing something equivalent manifesting an intention to assert a right in the land, within ten years after condition broken. This suit was instituted April 18, 1902, or more than ten years after the date of the sale of the land to 'James Miller. If, then, the ■discipline of the church gave the trustees the right to .sell the property to Miller, and there was no entry upon the land, such as is contemplated by law, by the plaintiffs or by those under whom they claim, within ten years after the date of such sale, when the condition was broken, it is plain that they cannot recover.

The universal doctrine is that conditions subsequent are not favored in the law, and are strictly construed in favor of the grantee. [Morrill v. Railroad, 96 Mo. 174; Crane v. Hyde Park, 135 Mass. 149.] Under such circumstances, it is well settled that there must be some positive act upon the part of the grantor manifesting his intention to reclaim the estate, either by bringing suit or otherwise.

It may be conceded that the possession of James Miller and other trustees was not adverse to plaintiffs; but that it did become adverse to them when the property was sold and the deed executed to Miller by the trustees is, we think, beyond any question. The execution of such deed to Miller clearly showed an intention on the part of the trustees to use the property for other than church purposes, for which it had not been used for several years. This is emphasized by the fact that the property was sold to Miller absolutely and unconditionally. That the title to the property was in the trustees until the sale to Miller is not disputed, and upon such sale the title vested in him, his heirs and assigns, until re-entry by the grantor or his heirs for condition broken.

The right to enforce a forfeiture may be forfeited or waived by the grantor. “He has an option to declare a forfeiture, but this right he may waive either by express act or passive acquiescence. . . . If he is not in possession he must make an entry, or by some act equivalent thereto assert a continual claim, manifesting a determination to take advantage of the breach. . . . Until this has been done the grantee holds the estate, liable only to be defeated, but not actually determined by a forfeiture.” [1 Warvelle on Vendors (2 Ed.), sec. 446.]

In Kenner v. American Contract Co., 9 Bush (Ky.) l. c. 210, it is said: “The more modem authorities on the subject of forfeitures establish, the doctrine that it is with the party in whose favor the condition is, or who becomes entitled to the estate by reason of the forfeiture, to say whether the estate shall be forfeited or not; and although the user, from which the grant of a public passway may be implied, must have continued for a period required to toll the right of entry in ejectment, the waiver of a forfeiture may nevertheless be inferred by reason of the failure of the party entitled to the estate to re-enter or assert some claim in a reasonable time, terminating the estate; and particularly in a case where the party to whom the grant is made is permitted to use and make valuable improvements on the premises after .the condition is broken. The courts adjudge the waiver of a forfeiture upon the principle that the happening of the condition does not ipso facto determine the estate, the same remaining in the grantee, but only subjects it to be defeated at the election ■of the grantor; and for the additional reason that forfeitures are not favored either in courts of law or •equity.”

There was evidence to show that the church, in pursuance of an order or vote of its Quarterly Confer■ence, acting in accordance with its rules and discipline, abandoned the property in question and removed to another church site, and caused the said property, with ■other property used in connection therewith, .to be conveyed by the trustees bolding tbe title to James Miller absolutely and free from any trust, for tbe consideration of $3,000, and that said money was applied to tbe purchase of another site and tbe erection of another church building on said new site; and that said trustees thereupon turned the exclusive possession of said premises over to said Miller; that he caused his said deed to be duly recorded and took exclusive possession of the property, removing the church furniture therefrom and exercising all the usual acts of ownership over and upon said property, and that all of said acts were done prior to March 14, 1892. Under this state of facts, the declarations of law by the trial court were correct, and in accordance with the views which we have expressed.

The judgment should be affirmed. It is so ordered.

All concur.